We informed you about the whistleblowing regulation already in late 2021 in connection with the proposed amendment to Act No. 54/2019 Coll. on Protection of Whistleblowers of Anti-Social Activities (“Whistleblowing Act“), which intended to transpose the European Directive (EU) 2019/1937 into Slovak law. However, back in the day, this act failed to fully transpose the Directive into the national law.
After a lengthy process and over a year of delay, on 1 June 2023, an amendment to the Whistleblowing Act was published in the Collection of Laws that will transpose the Directive into our legal system, and given that the deadline for the transposal was originally set for 17 December 2021, we can only say “Finally” with a capital F.
The adopted changes enter into force in two stages, whereby on 1 July 2023 the following changes will enter into force:
- Expansion of whistleblower protection. The definition of whistleblower has been broadened to include individuals beyond the scope of an employment relationship. This includes members of legal entities’ bodies, self-employed persons, volunteers, contractual partners, service providers, job applicants and former employees.
- Protection of trade secrets. The amendment directly enshrines the possibility to report information related to trade secrets without violating the law and provides protection for whistleblowers in such cases as well.
- Extension of the scope of crimes classified as serious anti-social activity. The Whistleblower protection now covers crimes with the upper penalty higher than two years (previously three years). In addition, the list of related crimes is extended to include endangerment of health with unauthorized drugs, theft or obstruction of bankruptcy proceedings.
- Confidentiality of identities of the persons named in the report or disclosure. The amendment strengthens the protection of persons who are named in a report or disclosure as the person to whom a breach is attributed by imposing an obligation on the employer to maintain confidentiality of such a person’s identity and to incorporate details on maintaining confidentiality of such a person’s identity in an internal policy.
- List of retaliatory measures. The law provides protection against certain retaliatory measures against whistleblowers, with the current amendment providing an exemplary list of these. These may include, for example, termination of employment, non-renewal of employment for an indefinite period, demotion, refusal of promotion, change of job duties, place of work or hours of work, reduction in pay, disciplinary action, harassment, defamation, withdrawal from a contract for the supply of goods and services, revocation of a licence or permit.
- Record-keeping obligations. Employers are required to keep a record of measures taken to remedy deficiencies in the reporting system. They are also required to submit a report to the Whistleblower Protection Office on the measures taken to remedy the deficiencies identified.
- Confirmation of receipt of the report. Employers now have a new obligation to confirm the receipt of a report on anti-social activity within 7 days of receiving it.
- Handling of the report. Employers are required to conclude the investigation and inform the whistleblower of the results, including the measures taken, within 90 days of confirming the receipt of the report. This time limit is fixed with no possibility of extension.
- Increased penalties. Penalties for individuals engaging in retaliatory actions against whistleblowers have been raised from EUR 2,000 to EUR 6,000. If an employer repeats retaliatory measures within two years, they may be subject to a double penalty, up to a maximum of EUR 12,000.
Additional changes will take effect from 1 September 2023:
- Expansion of obligated entities. Employers providing financial services, transport security services and environmental services have to establish an internal reporting system regardless of the number of their employees.
- External responsible person. Employers with fewer than 250 employees may authorise an external person – who is not an employee – to receive, confirm receipt and investigate reports. If the employer has more than 250 employees, the external responsible person can receive and confirm the receipt of reports, but cannot investigate them.
- Internal policy. The internal whistleblowing policy must contain (among other things) details on taking measures to remedy deficiencies found during the investigation of reports and details on communication with the whistleblower regarding these measures. It should also address measures against whistleblowing prevention.
- Measures against obstruction. Employers are obliged to adopt measures against employees who obstruct the reporting or the evidencing of reports.
- Further increase of fines. Non-alleviation of deficiencies and failure to keep evidence of the measures adopted to remedy deficiencies may result in a fine of up to EUR 30,000. Breach of employer obligations or retaliation may lead to a fine of up to EUR 100,000. These fines can be doubled for repeated violations.
Given the scale and nature of the changes, companies that are obliged persons need to revise their internal policies on whistleblower protection to reflect the new legal requirements. Equally, these changes may create an obligation for some entities to establish such internal rules and an internal protection system. Last but not least, the existence of strict whistleblower protection needs to be reflected, respected, and taken into account in internal procedures and investigations.
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13 June 2023. This legal update has been prepared solely for information purposes and it does not contain all comprehensive information. Thus, it shall not be considered as legal advice. For further information or advice on the recent amendment to the Whistleblowing Act, please do not hesitate to approach our experts:
Tomáš Rybár: tomas.rybar@cechova.sk
Peter Fedor: peter.fedor@cechova.sk