WHAT DID THE AMENDMENT TO THE ACT ON THE PROTECTION OF WHISTLEBLOWERS OF ANTI-SOCIAL ACTIVITY BRING?

#90What did the amendment to the Act on the Protection of Whistleblowers of Anti-Social Activity bring?

Following on from the amendment already in force, it is necessary to point out the context, which will bring the reader closer to a certain context of context. On 1 March 2019, Act No. 54/2019 Coll. on the Protection of Whistleblowers of Anti-Social Activity and on Amendments and Additions to Certain Acts, also referred to as the "Whistleblowing Act", entered into force. The aim of this Act is to provide protection to employees from possible sanctions for reporting crime or other anti-social activity, while ensuring the obligation of employers in receiving and handling such reports. The introduction of the measures is intended to encourage employees to report anti-social activity of which they become aware in the context of their employment.

On 10 May 2023, the National Council of the Slovak Republic adopted an amendment to the Act on Whistleblowing, which was published in the Collection of Laws of the Slovak Republic as Act No 189/2023 Coll. The amendment containing partial changes came into force on 01.07.2023, however, the amendment in question also contained provisions that had to wait until 01.09.2023 to come into force and relate to internal whistleblowing systems and sanctions.

1. Retaliatory measure

Means an act or omission to act in connection with a whistleblower's employment or other similar relationship which is triggered by the reporting or disclosure of information about anti-social activity and which has caused or is likely to cause unjustified harm to the whistleblower or another person under this Act. This includes, but is not limited to, dismissal, immediate termination of employment, disciplinary action, coercion, failure to provide training, reduction in pay, revocation of a licence, etc.

2. Extension of the concept of whistleblower

This measure ensures that persons in other similar relationships in addition to the employment relationship will also be protected. Only a natural person who has made a notification in good faith and who has addressed the notification to the competent authority to receive such notification can be a notifier. One very significant measure has been introduced in relation to the protection of the whistleblower's person, namely the possibility of preserving the anonymity of the whistleblower before the employer.

3. Extension of the range of offences that will constitute serious anti-social activity

If we are to explain the sanctions applicable to anti-social activity, it is essential to note that it can be divided into serious and other anti-social activity. Serious antisocial activities are the offences defined in the Criminal Code, which have been expanded by the amendment to include, for example, the offence of failure to provide assistance, the offence of favouring a creditor, the offence of receiving and granting an undue advantage, and the offence of unauthorised handling of personal data.

Previously, the term serious anti-social activity was understood to include offences for which the Criminal Code provides for imprisonment with a maximum penalty of more than three years, but the amendment includes offences for which the Criminal Code provides for imprisonment with a maximum penalty of more than two years. Serious antisocial activities continue to include administrative offences punishable by a fine with an upper limit determined by calculation or administrative offences punishable by a fine with an upper limit of at least EUR 30 000. For the record, the area of administrative offences was not affected by this amendment. By other anti-social activity we mean activity which does not fall within the characteristics of serious anti-social activity and is, as a rule, minor.

4. Obligations of employers in relation to the reporting of anti-social activities

The amendment created :

1. An obligation to designate a responsible person, for an employer who employs 50 or more employees, an employer who provides financial, transport safety or environmental services, and an employer who is a public authority who employs five or more employees.
2. The duty to issue by-laws containing details of how to make, verify and record a notification, to notify the whistleblower of the results of such verification, to take action to remedy any deficiencies identified in the verification of notifications and to communicate with the whistleblower regarding such action, to take action against obstruction of the reporting of anti-social activity...
3. The obligation to deal with notifications shall in particular regulate the time limits relating to the notification.
4. The obligation to keep a register of notifications, for a period of three years from the date of receipt of the notification.

5. Increase in the rate of fines

As a point of interest, the amendment increases the fine from €2,000 to €6,000 where a person threatens to retaliate, attempts to retaliate or retaliates against a whistleblower in connection with making a notification, or breaches the obligation of confidentiality as to the identity of the whistleblower or the identity of the person concerned, or attempts to prevent or obstruct the making of a notification. If the person in question retaliates again within two years of the first act, the Authority may impose double the first fine, up to a maximum of €12,000. These are also other fines which are provided for in the Act and are listed in the Act.

6. Notice

This is defined in section 2(b) of the Whistleblowing Act as "the disclosure of facts which have come to the knowledge of an individual in connection with an employment relationship or other similar relationship and which relate to anti-social activity". If the communication can contribute or has contributed to the clarification of a serious anti-social activity or to the detection or conviction of its perpetrator, it is a qualified communication.

So what is the conclusion?

An employer who employs at least 50 employees, an employer who provides financial, transport safety or environmental services and an employer who is a public authority employing at least five employees are required to set up an internal control system for the receipt and handling of notifications. This may include notifications that will not only point to illegal conduct but also to other unfair, unethical or wasteful conduct, as well as anonymous notifications of serious anti-social activity.