On 18 February 2019, the Ministry of Justice of the Czech Republic submitted a proposal of a new law – an Act on Protection of Whistleblowers[i] to the Czech Government. The legislator has been repeatedly dealing with the issue of the whistleblowing (i.e. reporting or disclosing information on a wrongdoing obtained in a work-related context), but no complex regulation, which would support the whistleblowers and provide them with protection, has not been implemented yet in the Czech legal system.
Currently, the protection of whistleblowers is also being dealt with in the European Union. Since last year, the European Parliament and Council have been discussing the proposal for Directive of the Protection of Persons Reporting on Breaches of Union law[ii].
The objectives of the proposal
The objective of the Czech propoed law is to provide employees, civil servants, professional soldiers and members of the security body (in this article hereinafter cumulatively as the „employees”) with appropriate environment and trustworthy way for reporting illegal acts, which they have found out in connection with their employment or service. For the purposes of the draft law the illegal acts are defined as crime, administrative infraction and act with elements of crime or administrative offence.
As we have already indicated, the protection of whistelblowers in the Czech legal system is not established at the moment in a complex manner. Therefor, it must to be deduced from the general institutes of individual regulations in criminal or administrative law and primarily from labour law and other regulations that establish the relationships between employers and employees. The only exception is the protection of civil servants, who are already explicitly protected against the negative effects of whistleblowing by government regulation No. 145/2015 Coll. At this moment, it is the only regulation in Czech legal system, explicitly protecting whistleblowers.
What would the adoption of the new law in current wording bring?
Every employee should be able to report illegal acts in connection with their employment, both directly through his employer or using so-called external notification system.
The proposed law brings an obligation for some employers to establish their own internal notification system, which would be available to all employees and determine the rules for submission the notifications and ensure among others the possibility to submit the notification anonymously. The proposed law then provides for other rules and obligations for the internal notification system.
The proposed law shall impose a duty to establish internal notification system on employers, which:
- employ more than 50 employees;
- have an annual sales or balance sheet of annual balance over 10 million EUR;
- are a so called “obligated persons” under the Act on Selected Measures against Legitimization of Proceeds of Crime and Financing of Terrorism; or
- are a contracting entity by the Act on Public Procurement, except the municipalities with less than 10,000 inhabitants (unless it is a municipality executing extended competence).
The proposed law also assumes establishment of the Agency for the Protection of Whistleblowers, as an organizational unit of the Ministry of Justice. The Agency should be a part of the external notification system, which the whistleblowers can use in case they do not make the notification directly through their employer (e.g. in a situation where the internal notification system is not established at all, the employer did not take necessary measures in connection with the notification in reasonable period of time, or if submission of the notification to the employer would thwart the investigation). However, accepting the notifications is not the only assignment of the Agency. It should also provide whistleblowers with necessary information, consultancy or issuance of certificates of submission of the notification. The whistleblowers would still have an opportunity to submit the notification to the relevant public administration authorities, such as the Police.
Retaliatory measures
Whistleblowers should be, according to the proposed law, protected primarily against so called retaliatory measures taken by the employer in connection with the submitted notification. The retaliatory measures could be e.g. dismissal from employment, transfer to another position, unreasonable refusal of promotion, reduction of salary or change of work time or work place as well as any other discriminatory or disadvantageous sanction of the whistleblower by the employer.
The whistleblower cannot be exposed to the retaliatory measures due to submission of the notification. Under certain conditions the identity of the whistleblower may be kept confidential.
According to the legislator the perception of whistleblowing is at the moment rather negative. The fear of employer´s sanctions or the response of the society is outweighing the public interest on early detection of the illegal acts and the corruption. The proposed act is aiming to strengthen the status of whistleblowers and increase their protection against possible repressions caused by their employer.
Conclusion
According to the nature and sensitivity of the discussed proposal, we expect that the text of the law may be changed during commentary and legislative procedure at both chambers of Parliament of the Czech Republic or in the effect of the adoption of the Directive of the Protection of Persons Reporting on Breaches of Union law.
We will inform you about further development of the Act on Protection of Whistleblowers. In addition, we would like to point out, that within the good governance of business companies and other institutions, it should already be borne in mind that the internal processes governing notifying undesirable and illegal acts at the workplace and procedures for the protection of whistleblowers as well as the protection of business companies and other institutions shall be established.
In case of any questions we are at your disposal, please do not hesitate to contact us.
Mgr. Barbora Cetkovská, junior lawyer – cetkovska@plegal.cz
Mgr. Jakub Málek, partner – malek@plegal.cz
01. 03. 2019
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[i] The proposed law is available here: https://apps.odok.cz/veklep-detail?pid=ALBSB9HFJX37 in Czech.
[ii] The draft of the Directive is available here: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018PC0218&from=CS in English.