The current Slovak whistleblowing regulation in Act No. 54/2019 on the protection of persons reporting anti-social activity (the "Whistleblowing Act") became effective in March 2019, therefore before EU Directive 2019/1937 on the protection of persons who report breaches of Union law, which became effective in October 2019 (the “Directive”).
Consequently, the Whistleblowing Act did not fully reflect the whistleblowing regulation according to the Directive. Compared to the Directive, the Slovak regulation was broader in some areas and limited or non-existent in others. Slovakia missed the original deadline for the transposition of the Directive on 21 December 2021.
Finally, on 10 May 2023 the Slovak parliament adopted an amendment to the Whistleblowing Act, which transposes the Directive (the “Amendment”). In general, the Amendment should be effective from 1 July 2023, with some parts not coming into force until 1 September 2023. Among the most important changes the Amendment introduces are:
- Whistleblower definition: the definition of a whistleblower will have much broader meaning and will include ex-employees, independent contractors, business partners/suppliers, job candidates, etc.
- Retaliation protection for persons other than the whistleblower: the Whistleblowing Act will now provide protection against retaliation for a broader group, e.g. a close person of the whistleblower, a company owned/co-owned by the whistleblower, a person who assisted the whistleblower in making the report, and whistleblowing officers.
- Anonymous report: so far, the option to make an anonymous report was not specifically mentioned in the Whistleblowing Act, although in theory employers should also investigate anonymous reports. The Amendment now clearly states that anonymous reports are possible and that anonymous whistleblowers, who are subsequently identified, are also protected by the Whistleblowing Act.
- Retaliation definition: the law now provides examples of prohibited retaliation actions, e.g. the termination of employment, termination in the probation period, demotion or denial of promotion, damage to a person’s reputation, cancellation of a contract, revocation of a licence or permit.
- Whistleblowing officer: according to the current regulation, an external party can fully perform the position of whistleblowing officer based on a written contract with the employer. The Amendment will introduce the obligation to have an internal whistleblowing officer for employers that employ at least 50 employees and for employers that provide financial services, transport safety services, or environmental services (regardless of the number of employees). It will still be possible to have an external party to:
a. receive, confirm delivery, and investigate whistleblowing reports (for employers with fewer than 250 employees),
b. receive and confirm delivery of whistleblowing reports (for employers with 250+ employees),
- Confirmation of delivery: the employer will have a new obligation to confirm the delivery of the report to the whistleblower within seven days after its delivery.
- Whistleblowing policy: the current regulation already included the obligation to have an internal whistleblowing policy. Now the policy must also include details on:
a. taking measures to eliminate deficiencies found during an investigation of whistleblowing reports and on communication to the whistleblower about them; and
b. taking measures against preventing whistleblowing reports.
This obligation will be effective from 1 September 2023.
- Sanctions: the Amendment introduces substantial increases in the possible fines for breaching the Whistleblowing Act:
a. for individuals: up to EUR 6,000 and up to EUR 12,000 for repeated breaches in the previous two years; the current maximum is EUR 2,000;
b. for employers: up to EUR 100,000 and up to EUR 200,000 for repeated breaches in the previous years; the current maximum is EUR 20,000.
Although Slovakia has had whistleblowing regulation since 2014, the Amendment introduces several novelties to the Slovak legal system. We recommend that employers review their internal whistleblowing processes and regulation to be fully compliant with the updated Whistleblowing Act.
Author: Pavol Kundrik