by Michal Pleticha
Last year we summed up the Czech government’s efforts to kick-start serious discussions to better protect whistleblowers, including by setting up an Advisory Board in January 2015. Composed mostly of NGO representatives and public officials, the Board was charged with analyzing current provisions and developing a new whistleblower protection law.
Before long, we realized that the Board’s work was not proceeding quickly enough. Acting proactively, we put together our own legislative proposals intended to be practical starting point for debate.
Or so we thought.
Despite the fact that many appeals have been made to EU countries to adopt comprehensive whistleblower laws – ranging from the Council of Europe to PricewaterhouseCoopers – the Czech government’s proposal submitted to Parliament doesn’t go nearly far enough. On the contrary, it simultaneously fulfills the promise while delivering the least possible protections. It is a sham.
The government does not even attempt to hide this. In the era of LuxLeaks and Panama Papers, the proposal admits that its goal is to “make the least impact on current legal system.” With an official determination such as this, it is little wonder that the final result is so feeble.
For starters, the government’s proposal is based on the notion that the only institution capable of protecting whistleblowers is a court. There would be no public authority that could ban or invalidate retaliatory actions against a whistleblower – such as dismissal, transfer and harassment – or to protect them from legal liability. The enhanced protections would only be procedural in nature.
Moreover, employers would not be required to set up internal reporting channels, or provide legal aid for employees considering making a report.
Despite this, the government still finds the proposal encouraging enough for a Czech employee to blow the whistle. And then get harassed, labelled a snitch, fired, lose their reputation, squander family savings on lawyers and then, after a years-long court battle, be awarded “sensational” damages for being discriminated by their employer. This is the fruit of two years of labor by the Advisory Board?
A better but imperfect alternative
Meanwhile, former Minister of Finance Andrej Babiš, a strong promoter of whistleblowing who is impatient with the government’s lengthy preparations, submitted his own proposal in May 2016, but only as a Parliament member and not as a minister. His proposal has been lying unnoticed in the Parliament ever since, still waiting for lawmakers’ attention.
Though also a partial regulation, it is more elaborate than the government’s. Most importantly, it would provide real protections for whistleblowers in the workplace.
Under Babiš’s proposal, the key institution is the Supreme Public Prosecutor’s Office, which would operate a disclosure system to accept anonymous reports and allow safe communications with whistleblowers. When a complaint is assessed as legitimate, based on good faith and credibility, the Office could grant protective status to employees. Any action taken against an employee first would have to be approved by the Labour Inspectorate.
Because both the government’s and Babiš’s proposals are partial, they are subject to changes while going through the legislative process. But the question is whether there will be any deliberation in Parliament at all, given the preoccupation with the October 2017 parliamentary election.
As we concluded last year: “We strongly suspect that the absence of governmental activity for last two years gives off signals that there is no real will in political circles, and all proclamations to adopt a whistleblower law are just political drivel. The elegant way out of promises might be to prepare a basic draft at the end of electoral term, let it go through the government, make a fuss about it and send it to the Parliament – knowing there would not be enough time to scrutinize it in both chambers. Hands would be washed.”
Today, our opinion remains the same.