Whistleblowing brings strong whistleblower protection

13. 7. 2021

Authors: Robert Nešpůrek, Petra Sochorová

Source: FairWhistle Blog

The proposed Whistleblower Protection Bill in the Czech Republic introduces strong whistleblower protection, particularly the protection of the whistleblower ’s identity and protection against retaliation.

If employers do not provide this protection to their whistleblowers, they risk heavy penalties from the supervisory authorities. However, an even greater risk is that a whistleblower who does not feel safe reporting within your organisation will prefer reporting to a public authority or even the media.

This risk is best managed by implementing a whistleblowing system that respects all statutory requirements to protect those who choose to make a report. By creating a system that is safe and trustworthy for whistleblowers, you increase the chances that the whistleblower will use it as their first choice and that you will be the first to know about potential problems in your organisation. Internal issues can be resolved faster, cheaper and, most importantly, without damaging your reputation or compromising your trade secrets.

Who you must protect

The Bill protects whistleblowers as well as a number of other persons. Typically, a whistle-blower can be an employee, a self-employed person, a contractor or job applicant. Other protected persons include those who helped the whistleblower obtain the information, persons close to the whistleblower, their employees and colleagues, as well as legal entities in which the whistleblower has an interest or is a member of an elected body.

Conditions for providing protection

A whistleblower will only be protected if he/she makes a report on interests protected pursuant to the Bill (such as public procurement, consumer or environmental protection), as well as in other areas if the breach reaches the intensity of an administrative infraction or a criminal offence and if it is related to work or other similar activity. Personal problems of the whistleblower or career complaints will usually not qualify as protected whistleblowing report.

Whistleblowers are entitled to protection only if they have reasonable grounds to believe that the information reported is true. Again, false reports will not qualify for protection.

Limits of the confidentiality obligation

If the whistleblower is of the opinion that the report is necessary for the detection of unlawful conduct and that the interest in reporting prevails in the present case, the report will not be considered a breach of bank secret, trade secret, contractual confidentiality obligation or the duty of confidentiality under other legal regulations. In practice, this may include, for example, taking documents from a workplace or the taking of otherwise unauthorised photographs.

The confidentiality obligation is maintained for classified information and information the disclosure of which could apparently jeopardise, for example, pending criminal proceedings. Confidentiality is also preserved in the exercise of legal professions (notaries, public prosecutors, lawyers, judges or tax advisors).

Identity protection ensured by the responsible person

The law requires the employers to appoint a responsible person, i.e. an “ombudsman” to receive and handle reports. The responsible person is the only person entitled to know the identity of the whistleblower and is obliged to protect it.  Information about the identity of the whistleblower and other protected persons may only be disclosed by the responsible person to third persons subject to their written consent. This also applies to information about the identity of the persons named in the report.

This statutory requirement places high demands on the professional qualities of the responsible person as well as on the processes related to handling reports, such as report verification within the organisation, keeping records of the reports or conducting follow-up communication with the whistleblower.

No retaliation

The Bill obviously prohibits any retaliation against the whistleblower and other protected persons. Retaliation means, for example, termination of employment (termination of employment or non-renewal of fixed-term employment), reduction in wages, change in working hours or withholding of professional development, or any other act of the organisation that could cause harm to the whistleblower or any other protected person.

In this context, the law also makes changes to the Civil Procedure Code and shifts the burden of proof to organisations. In court proceedings, the injured whistleblower will only be required to prove that he or she was subjected to different treatment than another person in a comparable situation and claim that this was due to the whistleblowing. It will then be up to the employer to prove that the different treatment was objectively justified by another legitimate and factually relevant reason and that it constituted a reasonable and necessary means and not retaliation for the report.

Considering the above, we recommend strictly separating employment law processes from whistleblowing processes to prevent potential suspicions of retaliation.

Penalties

The Bill introduces penalties for non-compliance with the rules for the protection of whistleblowers and other protected persons in the form of a fine of up to CZK 1,000,000 or 5% of the net turnover for the latest completed accounting period- the Bill also allows whistleblowers and other protected persons to claim compensation for non-pecuniary harm caused to them by the organisation.