New Act On Whistleblowers

Effective from March 2019, new Act No. 54/2019 Coll. on the Protection of Persons Reporting on Anti-Social Activities and on Amendments to Certain Laws (hereafter referred to as the “Act on Whistleblowers”) entered into force. It is aimed to enhance and make more effective the protection provided by previous Act No. 307/2014 Coll. on Certain Measures Related to Reporting on Anti-Social Activities and on Amendments to Certain Laws (replaced in full from March 2019). The Act on Whistleblowers responds to various deficiencies in the previous legislation (the absence of the responsibility of a specific person for sanctioning a whistleblower or disclosure of his/her identity) and, at the same time, implements knowledge acquired from practical application (for example, lack of awareness and discussion with broader public).

The act Act on Whistleblowers introduces several new features in the protection of whistleblowers in Slovakia, such as the establishment of a special (new) Office for the Protection of Persons Reporting on Anti-Social Activities (some of its powers will be temporarily exercised by the competent labour inspectorate in a transitional period), extension of the protection and rights of a whistleblower in criminal and administrative proceedings, changes in terminology, and so forth. Below is a summary of the most important changes compared to the previous legislation, to which (not only) employers in Slovakia should be prepared to respond in the future:

  • Internal system of investigation of notifications – new material and formal requirements have been introduced with regard to the internal handling of notifications (remains mandatory only for private employers with more than 50 employees). The Act on Whistleblowers explicitly enshrines a new requirement that an employer (depending on its size and organizational structure, internal rules etc.) is obliged to take technical and organizational measures corresponding to the state-of-the-art level of knowledge (taking into account the costs related to their implementation and the employer’s possibilities of ensuring the investigation of notifications in compliance with the act). In addition, the designation of the responsible person and the methods of making notifications must be made public and accessible to all employees in a standard and commonly available manner in such a way that at least one method of making notification must be continuously accessible (e.g. online). An employer is required to make available information on the internal system of investigation of notifications in succinct, comprehensible, clearly formulated and easily accessible form. An employer is required to bring its internal system of handling complaints according to the previous legislation into compliance with the requirements of the new Act on Whistleblowers by 30 September 2019;
  • Protection of whistleblowers who publicly disclose information – the new legislation extends the possibility of using the instrument of suspending the effectiveness of actions under labour law to other persons. This applies to cases where an individual does not make a notification to the competent authority or employer, but instead discloses information on an “anti-social” activity to the public. However, this is conditional upon the person having reasonable grounds to believe that the notification would not lead to its proper investigation or may lead to his/her punishment. Either way, the person must continue to comply with the confidentiality obligation with respect to notification;
  • Possibility of suspending the effects of actions under labour law with respect to other persons – in addition to the whistleblower and persons close to him/her, the relevant provisions on suspending the effects of actions under labour law (Article 12 of the Act on Whistleblowers) also apply accordingly to the responsible person and employees participating in carrying out the duties of the responsible person (the purpose of the new legislation is to prevent undesirable interference in the activities of the responsible person and enhance his/her independence and thus also his/her capability of action);
  • Conditions of the functioning of a responsible person – The Act on Whistleblowers makes the definition of the status of a responsible person within a legal entity more specific in order to ensure his/her independence (a responsible person may also carry out other duties, but they must not lead to a conflict of interest). An employer must not punish this person for carrying out his/her duties and must enable him/her to carry out his/her duties independently, including the provision of adequate resources and cooperation). A responsible person must have expertise to carry out his/her duties, and the employer must continuously ensure that this expertise is maintained (however, no formal training courses, seminars, certificates etc. have been introduced – the fulfilment of these general criteria of expertise of a responsible person must be assessed by each employer individually);
  • Administrative responsibility for violation – an individual (for example, a director, HR manager, etc.) who carries out an action under labour law against a whistleblower without the consent of the Office for the Protection of Whistleblowers or who discloses the identity of a whistleblower may receive a fine of up to EUR 2,000;
  • Transfer of the burden of proof to an employer – an employer is required to repeatedly bear a reverse burden of proof to demonstrate the legitimacy of negative actions under labour law against a protected whistleblower (for example, in connection with suspension of the effectiveness of an action under labour law, as pursuant to the previous legislation, the competent authority had to have “reasonable grounds to suspect” that there was a causal link between this action and the notification in order to suspend its effects; the new legislation provides that if an employer does not prove that there is no causal link between the action under labour law and the notification, the effects of the action under labour law will be suspended);
  • Extension of the definition of whistleblowers – the new legislation will also protect a person close to a whistleblower who is in a labour relationship not only with the same employer as the whistleblower, but also with an employer who is a dependent person with respect to the whistleblower’s employer (for example, family members) or with respect to an employer established or incorporated by the employer of the whistleblower (for example, a subsidiary/branch);
  • Changes in the lengths of time periods – in contrast to the previous legal situation regarding suspension of the effects of an action under labour law, the time periods have been extended – a whistleblower will have 15 days to request that the effects be suspended, extended from previously applied 7 days, and the effects will not be suspended for only 14 days, but instead for 30 days in total;
  • Qualified notification – the new Act on Whistleblowers distinguishes between a notification (analogous to a “complaint” according to the previous legislation) and a qualified notification (analogous to a “notification” according to the previous legislation). A qualified notification continues to enjoy increased protection. A qualified notification no longer needs to include information that may “significantly” indicate that an anti-social activity has been or is being committed; it is enough that it may contribute to shedding light on a serious “anti-social” activity or identifying or convicting the perpetrator;
  • Serious anti-social activity – administrative offenses “for which it is possible to impose a fine with an upper limit established on the basis of calculation” (for example, fines in the amount of 4% of the annual turnover of a controller within the meaning of the GDPR) have been added to the definition. In addition, the new legislation has reduced the upper limit of a fine for an administrative offense (from the original 50,000 euros to 30,000 euros) that will be considered a serious anti-social activity;
  • Legal definition of good faith of a whistleblower – this is no longer tied to the whistleblower’s objective knowledge, but instead to his/her reasonable suspicion that his/her assertions are true. In other words, according to the new legislation, it is enough if a whistleblower sincerely believes that the content of his/her notification is true. Of course, deliberate (malicious) conduct on the part of a whistleblower remains unprotected.

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This legal summary has been prepared exclusively for the purpose of providing general information and should not be viewed as legal advice. The aforementioned overview is not comprehensive, but only provides a brief summary of the relevant legislative changes. If you are interested in more detailed information on the aforementioned legislative amendment, please do not hesitate to contact any of your contact persons at Čechová & Partners.