Month: December 2021

It is almost certain that implementation of the Directive in Poland will be prolonged. Our estimated scenario that we talked about from the beginning of the whistleblowing buzz is beginning to become the reality. We decided to check how other EU member countries are dealing with the same deadline, December 17.

Unfortunately, the conclusions are not very optimistic. The only countries that will probably be able to meet the EU deadline are Denmark and Sweden. Denmark has passed a relevant law in June this year, and Sweden was not far behind – it was passed in October. The employers there should introduce appropriate regulations by December 17.

Out of the 25 remaining countries, 20 (Poland included) are still working on appropriate legislation. The proposals for the bill are already prepared, but local authorities have still not approved them and the entire process is still not finalized. In Czech, the first project of the bill was drafted in February, but it has not been passed yet, and probably will not be approved before the deadline.  The process is even longer in The Netherlands, where the consultations began in summer of 2020 and are still ongoing.

Beginning the works early, does not necessarily mean that they will be finalized in time. On the other side we can see how much time other member countries spend on consulting legislative proposals and ideas with the public and the community of experts and practitioners who will apply the regulations on a daily basis.

Austria, Germany, Hungary, Italy and Luxembourg still do not have projects of the bill on which further warks would be carried out. The initial draft was prepared, but it was rejected. It is there, that the risk of possible claims based on the Directive against member countries is the highest.

In PCS Paruch Chruściel Schiffter Stępień | Littler Global we monitor the situation daily, waiting for further progress in legislative works. We act locally, but think globally, so we are not limited by our borders. Global employers who are operating in several jurisdictions have to deal with different regulations relevant in different member countries.

We recommend implementing appropriate regulations to polish companies today, no matter the progress of the works on the polish bill. Especially, if the internal regulations need to be in line with the central policies. Only immediate action could allow to properly regulate whistleblower protection in a company. Managing this process even before the formal statutory requirement allows for a bit more freedom and time to prepare. We would like to talk individually about how to use it efficiently. Do not hesitate to contact us!

The deadline is approaching quickly, and we still do not have the second draft of the polish bill on protecting whistleblowers. It is unknow, how experts will react to the second version  and how long will it take to go through all of the stages of legislative process. Fears, that Poland will not manage to implement the relevant solutions before December 17, are becoming more and more justified.

A question arises – what will the lack of timely implementation of the Directive mean for employees and employers, and whether in such a situation it will be possible to apply the Directive directly?

Direct application of the EU directives is complicated and ambiguous. As a rule, EU regulations are directly applicable – such as the GDPR, the provisions of which can be invoked by every citizen of the member countries, regardless of the existence of relevant provisions of national law.

However, in certain specific circumstances, directives can also have direct effect. They  can be found in the well-established EU judicature, which lists, among others:

• the clarity, precision and unconditional provisions of the directive;
• lack of implementation of the directive;
• lack of time for implementation.

In many places, the Directive requires to specify certain issues accordingly with the national law, but in our opinion, an interpretation assuming that the above conditions are met cannot be fully ruled out. Some could claim that the Directive will be directly applicable after December 17, 2021.

The direct application of the Directive can only be vertical. This means that individuals can rely on the European standard in relation to the country, but not each other. It is not possible for the state to enforce the Directive against individuals.

The above allows to assume that if a person reported a violation after December 17, then, relying on the provisions of the Directive, they would theoretically have a chance to obtain the status of a whistleblower and the related rights. The list of issues in this situation form the employer’s perspective seems to be infinite. The boundary between the whistleblower vs state and the whistleblower vs employer relationship will be difficult to define. Thus, employers may, to some extent, feel the negative effects of the passivity of authorities.

We recommend not to wait until the adoption of the Polish act with implementing regulations of internal reports of violations. Only immediate action could allow for adequate protection of the employer and significantly reduce the risks associated with the upcoming uncertainties.

Additional argument for of the urgency of the need to introduce relevant regulations is that their entry into force will take place 2 weeks from the date of communicating it to employees, in the manner adopted in the workplace. In order to be fully compliant with the act, it must be done on the day of its publication at the latest. Rules for internal violations reporting should be prepared in advance.

Because of the current technological changes, and rapid changes in the labor market, we need to redefine the concept of working on call and introduce necessary changes to the relevant regulations. Apart from the well-known on-call shifts, a new form appeared – employees staying in touch with the employer after working hours. – Robert Stępień comments for Dziennik Gazeta Prawna.

Article: here.

According to The Polish Deal, the employer will be solely responsible for paying contributions on remuneration for “illegal employment”. Self-employment does not meet this definition, so a self-employed person who applies for establishing the existence of an employment relationship, should be responsible for paying social security contributions in the part due from the employee. – Bartosz Wszeborowski comments for Dziennik Gazeta Prawna.

Article: here.

An appellate court voiced doubts over the interpretation of the phrase “performs work for an employer” included in Art. 8(2a) of the Social Insurance System Act. The court investigated whether this provision applies to the performance of a mandate contract concluded with an entrepreneur with capital and personal links to the entrepreneur being the contractor’s employer – Łukasz Chruściel comments for Rzeczpospolita.

Article here.

As a rule, the amount of remuneration for work agreed upon by the parties in the employment contract (and actually paid to the employee) constitutes the basis for social insurance contributions. However, the issue of determining the amount of remuneration actually payable to an employee, and, in turn, establishing the basis for contributions has generated controversy for years, especially because it is often questioned by the Social Insurance Institution. – Kinga Polewka-Włoch and Julita Kołodziejska comment for ius.focus.

Article available here.

There is no obligation to make an amendment notice in a situation when an employer changes individual components of the receivable for a business trip, maintaining their lower limits, but still pays the employee the agreed original amount. – Kinga Polewka-Włoch comments for Rzeczpospolita.

Artykuł: tutaj.

Only 50% of Poles are fully vaccinated against the coronavirus. The pandemic situation is drastically getting worse. Many employers decided to take matters in their own hands and handle safety of their workplaces on their own. They encourage employees to vaccinate by offering them various benefits. Is this practice allowed?  – Paweł Sych and Kinga Ciosk comment for Rekruter magazine.

Article: here.