The Slovak National Council approved an amendment to the Whistleblower Protection Act almost a year and a half after the deadline for transposition of the Directive of the European Parliament and of the Council (EU). It will take effect from 1 July 2023, and for certain obligations and penalties from 1 September 2023.
We therefore recommend that you prepare for the introduced changes now and thus minimize the risk of possible fines, the amount of which has been substantially increased by the amendment. Below is an overview of the substantial and practical changes.
Until now, the obligation to have an internal whistleblowing system in place has applied to:
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:
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.
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.
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.
Also, the amendment:
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.