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30. 5. 2019
As of 1 March 2019, the legislation concerning the protection of persons reporting on anti-social activities, so-called whistleblowers, has undergone changes that relate not only to whistleblowers, but especially to employers on whom the legislation has introduced additional obligations and modified the existing ones.
The original Act No. 307/2014 Coll. was repealed in its entirety and replaced with Act No. 54/2019 Coll. on Whistleblower Protection and on Amendments and Supplements to Certain Acts.
Office instead of labour inspectorates, but not immediately
The biggest change is the establishment of the Whistleblower Protection Office that will take over the responsibilities of labour inspectorates in the field of whistleblower protection.
Labour inspectorates will therefore continue to ensure whistleblower protection, including monitoring compliance by employers with their obligations, until the Office starts functioning properly (the end of the sixth calendar month following the appointment of its president).
The deadline for candidates to file applications for the post of the Office’s president expired on 7 May 2019, and their public hearing will follow. The proper functioning of the Office can therefore be expected only at the beginning of 2020.
Restrictions for employers in a nutshell
The new Act restricts and imposes conditions for employers in taking labour actions (e.g. serving termination notices by the employer, taking decisions to reduce the variable component of wages, etc.) in relation to employees who are whistleblowers.
Under the new Act, anti-social activity means crimes, offences and other administrative delicts, but also conduct that has a negative impact on society.
A whistleblower is a natural person who, in good faith, has reported on an anti-social activity to an employer, the Office, a prosecutor or an administrative authority.
The new Act also limits employers in relation to persons close to whistleblowers, but only under certain conditions.
An employer’s request to grant consent to taking an action against a protected whistleblower
The employer is informed of the status of the employee as a protected whistleblower who has been granted protection directly by the prosecutor or an administrative authority which delivers to the employer a written decision on granting the protection.
Upon receipt of the report, the employer cannot take labour actions against such an employee without first requesting the Office, currently a competent labour inspectorate, for the consent to taking such actions. The employer thus has a partially weakened position in relation to this employee.
For example, the consent is not required if the employer grants the employee who is a protected whistleblower a certain entitlement (e.g. wage increases, holiday bonus days).
In addition, the new Act shifts the burden of proof to the employer, as it must show in the request for consent that a labour action has no causal link with the report of anti-social activity.
Suspension of the effectiveness and enforceability of an employer’s action
If the employer has not been informed that an employee is a protected whistleblower, it may take actions against the employee freely.
However, after an action has been taken against the employee (e.g. after the termination notice has been served), the employer may be prevented from continuing with it. The Office may suspend its effectiveness and enforceability.
A precondition for the suspension of the employer’s act is the filing of a report on anti-social activity by an employee, his disagreement with the employer’s act, and also his assumption that the employer has taken the action (e.g. served him notice) against him in connection with the report. Last but not least, another precondition is the filing of a request to the Office (currently, a labour inspectorate) within the statutory period.
In addition, the new Act also burdens the employer when it shifts the burden of proof to the employer. The employer is obliged to prove that there is no causal link between the action already taken and the report.
If the employer proves that there is no link between the report and the labour action, the labour action is effective. Otherwise, a confirmation of the suspension of its effectiveness is issued without delay.
The new Act partially complies with the employer in limiting the period of suspension to 30 days from receipt of the confirmation by the whistleblower. The whistleblower is advised in the confirmation of the possibility of filing a motion to issue an urgent measure against the employer within this period.
By filing the motion to issue an urgent measure against an employer’s labour action in a timely manner, the suspension of the effectiveness of that action is automatically extended until a court’s decision on the motion becomes enforceable.
Employer’s other obligations
Under the newly effective Act, the employer is also obliged to have in place an internal regulation laying down the details of the methods of receiving and verifying the reports, informing whistleblowers about the results of verifying, keeping records of the reports within the specified scope and for the specified period, and also about the processing of personal data specified in the report.
The Act newly imposes slightly increased requirements on employers also in relation to the responsible persons through whom employers perform their tasks and obligations imposed by the Act.
The Act strengthens the independence of the responsible person within the employer’s structure.
Newly introduced are the requirements for qualifications the responsible person must meet in order to perform such function, while the Act does not elaborate on or specify such qualifications in any way.
Assuring internal system compliance
The Act imposes an obligation on employers to harmonize their existing internal complaint handling system, created under the original Act, with the requirements and obligations of the new Act by 30 September 2019 at the latest.
By assuring the compliance of the original system with the requirements and obligations of employers under the effective Act, each employer should minimize the risk of penalties for failing to comply with the statutory obligations. A penalty may be imposed in the form of a fine of up to EUR 20,000.
Consequences of the newly effective Act
The Act imposes increased requirements on employers and does not make performance of their obligations easier due to vague formulations that leave room for different interpretations. This is despite the fact that the aim of the new Act was to eliminate these shortcomings. We assume that these questions and their interpretation will only be addressed in the Office’s further practice, but these will apparently be in the hands of labour inspectorates until the Office starts functioning properly.
Authors: Štepán Štarha, Milan Černaj