by Lukasz Fenrych and Dino Jahić

Just reading a newspaper in Poland tells you how new and somewhat alien the idea of whistleblowing is here. Nearly every article opens in some way explaining to readers what the concept even means.

The very notion of whistleblowing is viewed in Poland with distrust, seen as too close to spying and snitching. This is likely a hangover from the Communist era, when nearly any sort of reporting to the authorities could be perceived as a betrayal. You were in danger of even more backlash if your report got the attention of the Polish secret police – the UB and SB.

Though 70 percent of people surveyed recently in Poland said they would be inclined to report misconduct, more than three-fourths said they would expect a negative response due to social pressures and low trust in the legal system.

When asked what would deter them from making a report, more people cited the fear of being branded a snitch and the attitude of “it is none of my business” than the possibility of retaliation. This places Poland in the minority of countries around the world, where most whistleblowers rather fear reprisals and inaction by authorities.

To make matters worse, Poland has virtually no legal protections for employees or citizens who report misconduct or public health dangers. They have been left to themselves to defend against repercussions. “Our experience shows that retaliation against whistleblowers is quite common,” said Konrad Siemaszko of the Helsinki Foundation for Human Rights.

Up until very recently, activists and opinion leaders were almost universally skeptical about any hope that politicians would enact legal rights for whistleblowers.

Then in April 2017 – seemingly out of the blue – the Office of Competition and Consumer Protection (UOKiK) publicly launched an online portal and telephone hotline enabling people to report monopolies, price-fixing and other anti-competitive practices among companies.

Six months later, the government proposed the “Law on Transparency of Public Life,” which includes several measures to protect whistleblowers. Deficiencies in the draft opened the door for a group of NGOs to develop their own full-blown proposal.

Suddenly, a debate on protecting whistleblowers is simmering in Poland – for the first time ever.

Government’s proposal: Not better than nothing?

Released in October 2017, the government’s proposed transparency law includes:

• a ban on terminating or changing a whistleblower’s contract without a prosecutor’s approval,
• two years of severance pay if a whistleblower’s employment contract is improperly terminated, and
• reimbursement of any legal costs incurred by a whistleblower.

Being far from comprehensive, however, the proposal drew immediate criticism both locally and internationally. Among its shortcomings, the government’s draft would only cover reports of certain types of misconduct, thus excluding others. Concerns also were raised about the role of prosecutors in protecting employees, and the subjective criteria for lifting these protections. And, disclosing information via the media or directly to the public would not be protected.

In response to the substandard proposal, a stronger law was developed and publicized by four NGOs – the Helsinki Foundation for Human Rights, the George Soros-affiliated Stefan Batory Foundation, Institute of Public Affairs and Trade Unions Forum. The activists’ proposal had been in the works for some time but the release of the government’s draft moved them to accelerate their effort.

“There is a risk that such a narrow understanding of a whistleblower would make it harder to persuade courts to protect people from retaliation,” said Siemaszko of the Helsinki Foundation.

Among its features, the NGOs’ proposal introduces a broader scope of cases that could be reported and would require institutions to set up internal whistleblower procedures. The groups also are suggesting a commission to protect whistleblowers and oversee enforcement of the law comprised of NGOs, employee and employer organizations, the Ombudsman’s office and public institutions.

Tipping back the scales of justice

Poland’s labor law and other measures that theoretically should protect whistleblowers rarely do in practice – if ever. Not surprisingly many people file reports anonymously, and they usually call a journalist before public officials.

Statistics are lacking, but a recent review of known cases shows that most victimized whistleblowers have lost their unfair dismissal and other retaliation cases in labor courts. Prevailing jurisprudence in Poland stands international best practice on its head. In many cases, judges have based their rulings solely on the official termination notices, while ignoring even the possibility that the employee was fired for being a whistleblower. Workers are then forced into the position of proving they were fired because they reported misconduct. Short of receiving a letter from management stating this in black and white, this is next to impossible to prove.

A review of cases also reveals two important tips for people seeking judicial remedies. First, in order to have a strong chance of winning, they need the support of colleagues. Second, they may be accused or even charged with theft if they have taken documents or other materials from the workplace to support their case.

The recent case of a doctor who disclosed poor care and other shortcomings in her hospital illustrates the need for a strong, clearly worded whistleblower law. The doctor contacted the media only after managers and prosecutors did not respond properly to her concerns. Soon after she was fired and accused of defamation. In May 2016 the Regional Court in Warsaw ruled the information she disclosed was true and in the public interest. Eleven months later, however, a Labor Court found her dismissal lawful because her statements to the media were not true.

Such cases expose the need for a truly comprehensive whistleblower law – stronger than the government’s proposal.

“In our opinion it distorts the whole idea of whistleblower protection,” Siemaszko said. “We want to show the government and the public what protecting whistleblowers is really about, and what a law that complies with international standards should look like.”