SHOULD AN INTERNAL WHISTLEBLOWING SYSTEM BE IN PLACE ALSO WITHIN YOUR COMPANY?

Until now, the obligation to have an internal whistleblowing system in place has applied to:

• all employers with more than 50 employees; and
• public authorities with more than 5 employees.

From 1 September 2023, employers, regardless of the number of their employees, will also have such obligation, if they provide services in the field of:

• financial services; or
• transport safety; or
• the environment.

And what is the internal whistleblowing system anyway? The entire range of the employer's obligations and activities related to the implementation of internal processes and rules for the receipt of whisleblowing reports, their investigation, and the communication of the results of the investigation to whistleblowers within the statutory time limits. As part of the internal whistleblowing system, employers are also obliged to keep records of whistleblowing reports in a precisely specified scope for a period of 3 years. 

An integral part of the system also includes the employer's obligation to issue an internal guideline, the essentials of which are precisely stipulated in the Act. The amendment extends the details that must be provided for in the guideline - for example, details on taking measures against hindering of whistleblowing.

The current versions of the guidelines will therefore need to be updated by this September. The amendment also introduces a deadline for employers to acknowledge receipt of the report within 7 days of that receipt. From that moment, the 90-day period for the employer to investigate the report and follow up on it shall start running.  

The Whistleblower Protection Office may impose a fine of up to EUR 50,000, or EUR 100,000 for employers with more than 250 employees if they fail to comply with these statutory conditions from 1 September 2023. The maximum amount of the fine has so far been EUR 20,000.

On 2nd anniversary of its existence, the Office will thus have a considerably increased room for consideration on the amount of fines. Although the Office's practice to date has been accommodating to employers, we recommend that you prepare for the changes well in advance.

RESPONSIBLE PERSON AND OUTSOURCING - EMPLOYER'S OBLIGATIONS AND LIMITS

Under the Act, employers are required to fulfil the above obligations through a so-called ‘responsible person’. This may be a branch or a person within the organisation, or it may be another person or entity under contract. In a simplified way, responsible persons shall carry out and cover activities such as receiving, acknowledging, investigating, and keeping records of whistleblowing reports on behalf of the employer.  

As the Act has so far required professional qualifications for the responsible person to perform these tasks, including his or her independence and impartiality from the employer, practice has shown that employers often find it much more appropriate to outsource these obligations to external companies specialising in whistleblowing. Such a complete and effective solution on the Czech and Slovak market under the name FairWhistle we have brought directly from HAVEL & PARTNERS.

It is the outsourcing of employers' statutory obligations to experts that minimises the risk of potential penalties for deficiencies in the internal whistleblowing system, record-keeping, or the competence of the responsible person, etc. In the light of the new fines, this solution seems all the more appropriate.   

However, the amendment differentiates the way of engaging external responsible persons according to the number of employees. Employers with fewer than 250 employees can use the services of whistleblowing specialists on a contractual basis as before to the full extent. However, under the amendment, employers must also designate a responsible person from within their own organisation. For larger employers, it will be necessary to set up a way of engaging whistleblowing specialists separately. HAVEL & PARTNERS' Fair Whistle solution naturally covers all engagement and assistance options for employers.

This approach places increased compliance demands on employers as they will need to prepare for the changes from 1 September 2023. Particularly in view of the fact that for breaches of obligations in this respect, employers with fewer than 250 employees may be fined up to EUR 50,000, while employers with more than 250 employees up to EUR 100,000.

WHISTLEBLOWING REPORT V. BUSINESS SECRET, 1 : 0

According to the guidelines of the Directive, the amendment stipulates that the whistleblowing report concerning facts and information covered by a business secret shall not be considered as a breach of the statutory or contractual obligation to maintain confidentiality of the facts covered by a business secret.

The amendment already explicitly states that the external whistleblowing channel is the Whistleblower Protection Office, the prosecutor's office or the competent administrative authority. Thus, a situation may arise where, for example, a business partner reports directly to the Office or to the prosecutor's office the facts of which it has become aware when concluding or performing a contract. In such a case, it should not be possible to claim a breach of a business secret against the whistleblower.

OTHER CHANGES

Also, the amendment:

• has extended the group of persons who are considered whistleblowers or who qualify for protection under the Act. The whistleblower does not have to only include an employee working under an employment contract or an agreement on work performed outside the employment. The whistleblower may, for example, be a job applicant or a former employee, contractual partner, managing director or other member of the legal entity's bodies.   
• has considerably extended the range of offences that are considered to be serious anti-social activities. Under the amendment, these now include, inter alia, all offences with a maximum term of imprisonment exceeding two years. 
• In practical terms, the protection of such a whistleblower is that the employer must seek prior approval from the Whistleblower Protection Office if it wishes to take a legal action against the whistleblower or issue a decision in the employment relationship, such as consent to a dismissal, etc. Breach of this obligation is punishable by a fine of up to EUR 100,000. 
• explicitly prohibits employers from threatening or retaliating against whistleblowers, their close relatives, and other persons specified in the Act, under threat of a fine. 
• defines, and gives examples of, retaliation to include, for instance, dismissal, immediate termination of employment, termination during the probationary period, non-renewal of employment for a definite period of time, and others, if they have been prompted in connection with the whistleblowing report.

Due to many partial changes introduced by the amendment, it is not the purpose to include them all in this document. 

HAVEL & PARTNERS’ Compliance team will be happy to guide you through the amendment to the Whistleblower Protection Act and provide you with legal advice. At the same time, we are ready to provide you with a comprehensive and tailor-made whistleblowing solution through Fair Whistle.