The Whistleblower Protection Act came into force on 1 August 2023 and obliged certain entities to implement an internal whistleblowing system. For employers with 50 to 249 employees, the deadline for implementing the system has been extended to 15 December 2023. As this deadline approaches, below we summarize the background information, the obligations imposed on employers under the Act and options for how to deal with them.
Reporting illegal activities
The Act imposes an obligation to operate an internal whistleblowing system and guarantees whistleblowers who wish to use it protection from reprisals to which they may be subjected because of their report. The subject of the report may be possible illegal activities (further specified by the law) that have occurred or are about to occur in the obliged entity. Whistleblowers will typically be employees but also other persons who perform work or other similar activities for the obliged entity, such as temporary workers, interns, volunteers, contractors or suppliers. The employer has the option to exclude the receipt of reports from some of these persons (but not employees, interns or volunteers). Retaliatory measures are any measures that may cause harm to the whistleblower, e.g. termination of employment, reduction of wage or variable remuneration, removal from a managerial position, termination of contract, etc.
The report may be made orally or in writing (by e-mail, letter) or, at the request of the whistleblower, in person. If the report is made in person or by telephone, a record must be made. From the date of receipt of the report, deadlines for notifying the whistleblower of its receipt (within seven days) and of the results of the assessment of its validity (within 30 days) begin to run for the competent person (see below).
The essence of the system is to provide a secure reporting channel and to protect the identity of the whistleblower, so it is necessary to select the appropriate person or persons to be responsible for receiving reports and subsequent communication with the whistleblower. The law refers to this person as the “competent person”. The competent person must, among other things, have no criminal record, as evidenced by an extract from the Criminal Register or a similar extract from another country if the competent person is not a citizen of the Czech Republic.
There may be more than one competent person, which we would recommend. If there is only one competent person, the opportunity to file a report could be lost if that person is unavailable for a longer period. In addition, only the competent person may have access to the report received, which should be borne in mind if e-mail inboxes are automatically redirected when the employee is absent or if other employees have access to the inbox. This is not an easy solution to use if the employee is the competent person. These complications can be avoided, for example, by introducing a separate e-mail address dedicated for this purpose and accessible only to the competent person.
The choice of competent person is important, because this person will receive the report, assess its validity, propose corrective measures to the obliged entity (employer), ensure all further communication with the whistleblower, ensure compliance with the set deadlines and maintain the confidentiality of all facts that they learn about in connection with this role.
Obligation to provide information
Employers have an obligation to publish the following information in a way that allows remote access:
– on reporting methods
– on competent person(s), including contact details
– whether it excludes reports being received from persons for whom it may do so.
Outsourcing and the relationship with group-wide whistleblowing systems
Employers do not necessarily have to manage the internal whistleblowing system themselves. The law provides the option to delegate its management to another person (natural or legal person). This person may then be responsible for setting up and operating the internal whistleblowing system and may also act as the competent person receiving reports.
In addition, obliged entities with up to 249 employees may share the internal whistleblowing system or use an internal whistleblowing system established by another entity, provided that the legal requirements are still met.
In this context, many employers point to the existence of a group system that has been in place for many years. However, even sophisticated and well-functioning systems may not meet the requirements of the Act. In our view, the most effective solution may often be to establish a parallel local whistleblowing system in accordance with the Whistleblower Protection Act, appointing a competent person with no criminal record and ensuring that the statutory procedure for processing reports and the deadlines are followed. It will then be purely up to the whistleblower to choose which of the available reporting channels they prefer, whether a local system, where the law guarantees the prescribed protection and compliance with the deadlines, or a group system, which they may have already experienced successfully in practice. Alternatively, they may trust more in an international investigation team.
In addition to the internal whistleblowing system, whistleblowers can also use the external whistleblowing system of the Ministry of Justice. In specific cases and under specified conditions, the law also allows for the notification of illegal activity by publication, e.g. through social networks or in the media.
Employers should not underestimate the importance of implementing an internal whistleblowing system. Violations of the obligations are punishable by fines of up to CZK 1,000,000.
If you have any questions about the above information or are interested in assistance with putting the law into practice (implementation of the internal whistleblowing system, revision of related documents, etc.), please do not hesitate to contact the authors of this article – Dana Provázková and Michal Zahradník.
This document is a general communication and should not be regarded as legal advice on any specific matter.