The term whistleblowing refers to a situation where a person draws attention to unfair, unethical or illegal conduct. The aim of whistleblowing is to prevent accidents, damage to health and the environment or embezzlement of public funds.
In addition to having significant societal benefits, whistleblowing also helps companies establish a healthy and ethical environment, gain an advantage over competitors, or protect their reputation.
The basic principle of whistleblower protection is
a) on the one hand, the notifier’s ability to file a notification and
b) on the other hand, ensuring the protection of the whistleblower (or persons associated with him) from possible retaliatory measures by the obliged entity (most often the employer).
1st step (SELF) CATEGORIZATION
According to the legislation on the protection of whistleblowers, two categories of mandatory entities are introduced, each of which has an obligation to comply with the law from a different date. From 1 August 2023, with mandatory subjects according to Act. No. 171/2023 Coll., Act on the Protection of Whistleblowers (hereinafter referred to as the “Act”) become
a) employers with at least 50 employees (according to the number as of January 1 of the relevant year) a
public contracting authorities (Czech Republic and its organizational components, state contribution organizations, territorial
b) self-governing units and their contribution organizations, other legal entities established for the purpose of meeting the needs of the public interest).
Obliged entities must implement a so-called internal reporting system as follows:
- from 1 August 2023, employers with at least 250 employees (according to the number as of 1 January of the relevant calendar year) and public contracting authorities, regardless of the number of employees;
- from 15/12/2023 employers with at least 50 employees and no more than 249 employees (according to the number as of 1/1 of the relevant calendar year).
For the purposes of the Act, in addition to employees in an employment relationship, persons performing work on the basis of employment agreements outside the employment relationship and part-time persons and employees of an employment agency are considered to be employees.
2nd step DUTIES AND CHARACTERS
Basic obligations according to the Act primarily include:
A. Establish an internal reporting system;
This means issuing an internal document (perhaps in the form of an internal directive) on the protection of whistleblowers, which will determine the behavior patterns of the relevant person and the whistleblower, as well as the process of assessing received reports in accordance with the Act. Such an internal document should include in particular:
a) description of the procedural functioning and operation of the internal notification system;
b) a description of the procedure for receiving notices;
c) a general description of the procedure for resolving the notification received;
d) opportunities to communicate with whistleblowers;
e) how to keep the whistleblower’s identity confidential;
f) measures to prevent retaliation.
An internal notification system can have either
a) form of own technical solution, or
b) it can be outsourced from a third party (software solution provider).
The obliged entity can entrust another person with the management of the internal notification system, but this does not affect its responsibility for the fulfillment of its obligations. It will always be an information channel for secure (confidential) reporting between the reporting party and the relevant person.
3 reasons to consider outsourcing:
a) professional performance of the relevant person’s function independently of the company;
b) a team of lawyers is provided who are responsible for the performance of the relevant person’s function and their substitutability;
c) outsourcing increases the credibility of the system for whistleblowers who are assured of impartiality and no conflict of interest.
The Ministry of Justice of the Czech Republic has published a model internal regulation for the operation of the internal reporting system according to the Act on the Protection of Whistleblowers by a mandatory entity HERE.
B. Appoint the so-called relevant person who will be responsible for the fulfillment of obligations by the obliged entities;
The relevant person can generally be either to the obliged entity
a) in an employment relationship, or it can also be
b) by an external (outsourced) person.
The relevant person may not provide information about the informant to a third party, with the exception of fulfilling the obligation to provide data to public authorities, and is required to keep electronic records of notifications and keep received notifications for a period of 5 years from their receipt.
C. Allow whistleblowers to report through an implemented internal reporting system.
As an alternative to the internal notification system, the Act establishes an external notification system, which is operated by the Ministry of Justice of the Czech Republic (https://oznamovatel.justice.cz/). It is entirely up to the notifier whether to use the internal and/or external notification system managed by the Ministry of Justice of the Czech Republic to submit the notification.
Have you already implemented whistleblowing rules?
Even so, we recommend that you make sure and check that your ethics hotline meets all the requirements of the new legislation. The most common mistakes are:
a) group notification systems are not supported by Czech law, and the sharing of the internal notification system is only allowed for certain entities (employers with up to 249 employees) in compliance with legal rules. If you only have a group notification system in place, it will need to be revised;
b) AML-obligated entities (according to the Act on Certain Measures Against the Legalization of Proceeds from Criminal Activities and Terrorist Financing) that already had their reporting systems in place under existing legislation must also adapt their reporting systems to the law.
3rd step CONCLUSION RECOMMENDATIONS
Obliged entities will take two types of measures:
a) legal measures;
b) technical measures.
Legal measures:
The obliged entity must ensure the proper performance of the function of the relevant person, i.e. a person who will be able to assess received notifications in a qualified manner (primarily from the point of view of legal qualification) and settle them in accordance with the Law. The relevant person must not only know the legal provisions of the Act, but at the same time it is impossible that his legal knowledge does not also extend to other legal branches (with an emphasis on criminal and misdemeanor law).
If the relevant person is to propose effective corrective measures, he should also have knowledge of corporate and labor law.
Technical measures:
Any reporting communication channel must meet the requirements for information security. This means, for example, that the e-mail box will be accessible only to the appropriate person, there will be the elimination of the possibility of eavesdropping on telephone or personal calls, etc. The record and archiving of notifications and documents related to notifications will be stored in a room (object) technically secured against unauthorized entry by persons outside the scope of the relevant person.
Even if you do not fall under the mandatory entities according to the Act and the new regulation will not apply to you, the establishment of an internal reporting system can be recommended to you as well. Supporting whistleblowing comes with a number of other benefits.
elimination of damage to property and reputation;
exemption from criminal liability of a legal entity;
considering the fact that it is primarily a European regulation, it is rational to expect the extension of obligations to other obliged entities.
Who is ready is not surprised.
Do you have a question? If you are a member of our Association, use the Chamber of Commerce’s free advice for entrepreneurs.
