History of the Act and reasons for adopting subsequent amendments

Prior to the adoption of the Act, the area of reporting anti-social conduct was regulated by Act No. 307/2014 Coll. on certain measures related to reporting anti-social conduct and on amendments to certain acts, which came into effect on June 1, 2014. It was considered a legal protection tool for whistleblowers against actions by employers or their managers aimed at "punishing" whistleblowers. This Act regulated certain institutions as we know them today (albeit in a modified form), such as the protection of whistleblowers in criminal proceedings, in administrative offense proceedings, when reporting serious anti-social activity, remuneration for whistleblowers, suspension of the effectiveness of labor law measures taken against whistleblowers by the labor inspectorate (the Office for the Protection of Whistleblowers had not yet been established), and others. According to the legislator, this law did not reach the wider public and was therefore not used by the public.

For these reasons, it was replaced by the 2019 Act, which established the Office for the Protection of Whistleblowers, which took over the powers of the labor inspectorates under the original legislation and defined many additional powers and regulated whistleblower protection institutions.

The main purpose of the amendment was to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019), as amended. As the legislator also stated in the explanatory memorandum to the Amendment, the Directive had not been sufficiently, fully and correctly transposed into Slovak national law and that, for this reason, the Slovak Republic was at risk of failing to fulfill its obligations under the Treaty of Accession of the Slovak Republic to the European Union by failing to comply with the deadline for transposing this Directive. The 2023 amendment entered into force on 1 July 2023, and the provisions relating to internal reporting systems and penalties will take effect on 1 September2023 (due to a legislative vacancy, as the submitter considers it appropriate to allow sufficient time for the addressees of the law to familiarize themselves with the new provisions).

However, the purpose of adopting the Amendment was also to ensure the extension of protection to persons reporting breaches of Union law, the extension of protection to persons who, in cases defined by law, have disclosed information about anti-social activities, extending the protection of persons who have made anonymous reports and whose identity has subsequently been revealed, introducing a comprehensive obligation to have an internal responsible person once the criteria laid down in the law have been met, while at the same time narrowing the powers of the external responsible person when investigating reports, the extension of the obligations of employers, the extension of the obligations of the Office, the definition of the scope of mandatory data that public authorities are required to make available, the extension of the obligation to maintain confidentiality, and an increase in the rate of fines.

Office for the Protection of Whistleblowers

The Office for the Protection of Whistleblowers, abbreviated to the Office for the Protection of Whistleblowers (hereinafter also referred to as the "Office") was established by a law that came into effect on March 1, 2019. However, the Office itself did not start operating until September 2, 2021, as it was necessary to establish its organizational structure, secure its headquarters, and equip it with basic infrastructure and equipment.

Under the Act, the Office is an independent state administration body with nationwide jurisdiction, whose main agenda is to protect the rights and legitimate interests of whistleblowers when reporting anti-social activities. The Office is a budgetary organization, and its approved budget may only be reduced during the calendar year by the National Council of the Slovak Republic. The Office is located at Námestie slobody 29 in Bratislava and, in order to perform its tasks, may establish and abolish detached offices outside its registered office and determine the territorial scope of their jurisdiction.

For the purposes of this article, the main purpose of the Office may be defined as providing protection to whistleblowers who wish to report unfair practices they have encountered in their work (e.g., reporting corruption, fraud, or other criminal or administrative offenses) from possible reprisals that these persons may suffer in the course of their employment, such as transfer to another job, change of job description, withdrawal of various benefits (e.g., company computer or telephone) and, ultimately, dismissal, but also any other forms of intimidation or discrimination.

Within the meaning of the Act, the Office

• primarily decides on matters concerning the protection of whistleblowers when reporting serious anti-social activities and on matters concerning the suspension of the effectiveness of labor law measures (preventive and subsequent protection against any negative labor law measures on the part of the employer)
• performs control functions - it monitors the application of the Act (in accordance with the rules of control activities under Act No. 10/1996 Coll. on control in public administration), monitors compliance with the provisions on the provision and exercise of protection, monitors the manner in which the employer treated the whistleblower after the report was filed, and also monitors compliance with the provisions on the internal system for verifying reports
• notifies the competent authorities of any suspected retaliation against an employee in connection with the reporting of anti-social activity
• provides advice to employers on the development of internal regulations and mechanisms for their compliance, issues expert opinions and methodological guidelines on matters relating to the protection of whistleblowers
• receives reports of corruption, fraud, serious violations of the law or other unfair practices that have an impact on the public interest
• last but not least, it cooperates with the Slovak National Center for Human Rights and non-governmental organizations on matters relating to the protection of whistleblowers, as well as with similar institutions and organizations in the European Union and other countries.

The Office is a relatively small agency with a simple organizational structure headed by a chairperson who is responsible for its activities. The chairperson is elected and dismissed by the National Council of the Slovak Republic from among candidates proposed by the government. Among other things, candidates must meet the condition that their previous personal, public, and professional conduct guarantees that they will perform their duties properly, honestly, and responsibly.

The Office itself considers the most significant changes introduced by the Amendment to be the extension of the concept of whistleblower (which now includes not only whistleblowers in an employment relationship or other similar relationship, such as a member of a statutory body of a legal entity or a volunteer, but also others), the extension of the range of criminal offenses considered to be serious anti-social activity, and the possibility of imposing disciplinary sanctions on whistleblowers. members of the statutory body of a legal entity, volunteers, etc.), the extension of the range of criminal offenses considered to be serious anti-social activity, the possibility of reporting facts relating to trade secrets, the increase in penalties from €2,000 to €6,000, the introduction of fines of up to €100,000 for employers, explicit designation of external channels – authorities competent to receive reports (Office, public prosecutor's office and administrative authorities), definition of retaliatory measures that could be taken by the employer.

Subject matter of the Act – who is a whistleblower and how they are protected

The Act regulates the basic legal and institutional conditions for the protection of natural persons in an employment relationship (from 1 July 2023 also in other similar relationships) in connection with the reporting of crime or other anti-social activities.

The Act protects whistleblowers, who are defined as natural persons who, in good faith, report to the competent authority, office, or employer; a close person of the whistleblower is also considered a whistleblower who is in an employment relationship with the same employer as the whistleblower, with an employer who is dependent on the whistleblower's employer, or with an employer who is founded or established by the whistleblower's employer.

However, from July 1, 2023, a new, broader definition will apply, stipulating that a whistleblower is any natural person who, in good faith, makes a report to the authority competent to receive reports or to the employer. A natural person who, in good faith:

a) makes a report and their employment relationship or other similar relationship has ended, if they learned of the information about anti-social activity during the term of this employment relationship or other similar relationship,

b) makes a report and their employment relationship or other similar relationship has not yet been established, if they learned about the anti-social activity during the selection process or within the framework of pre-contractual relationships,

c) made an anonymous report and their identity was revealed,

d) disclosed information about anti-social activity which it learned during the selection procedure or within the framework of pre-contractual relations and its employment relationship or other similar relationship has not yet been established, or during the term of the employment relationship or other similar relationship, or after the termination of the employment relationship or other similar relationship, because

- it made a report through the internal reporting system and was not informed of the outcome of the investigation, or no appropriate measures were taken, and subsequently made such a report to the authority competent to receive reports and was not informed within a reasonable time of the status of the investigation or the outcome of the investigation,

- made a report to the body competent to receive reports and was not informed within a reasonable time of the status of the investigation or the outcome of the investigation,

- there is a reasonable concern that the anti-social activity may constitute an immediate or apparent threat to the public interest, or

- there is a reasonable concern that, if the report is made to the authority competent to receive it, the whistleblower would be at risk of retaliation or, given the specific circumstances of the case, there is a risk that the authorities receiving the report would not ensure an impartial and independent investigation of the facts reported,

Under the Act, whistleblowers are subsequently protected in criminal proceedings, administrative proceedings and when reporting serious anti-social behavior (against an employer).

How should a whistleblower proceed?

If a whistleblower suspects anti-social behavior or even serious anti-social behavior, they may contact their employer or the authority competent to receive reports - the Office, the public prosecutor's office or the administrative authority competent to conduct administrative offense proceedings (or also the relevant institution, body, office or agency of the European Union).

Under the law (as of July 1, 2023), every person has the right to:

a) report and disclose facts that they learned about in connection with their employment or other similar relationship and that relate to anti-social activity

b) a qualified report, i.e. a report that may contribute or has contributed to the clarification of serious anti-social activity or to the identification or conviction of its perpetrator

The whistleblower may submit their report to their employer if they trust them (according to the Office, this option is faster and more effective). Under the internal reporting system, as of July 1, 2023, employers with at least 50 employees and an employer who is a public authority employing at least 5 employees is required to designate an organizational unit or person (hereinafter referred to as the "responsible person") to perform the tasks of the employer within the meaning of the Act. The employer is obliged to make information about the internal system for reviewing reports available in a concise, comprehensible, clearly formulated and easily accessible form. The employer is obliged to issue internal regulations specifying the details of the submission of reports, the investigation of reports and the powers of the person responsible for investigating reports, the confidentiality of the identity of the reporting person, the recording of reports, informing the reporting person of the outcome of the investigation of their report, and the processing of personal data contained in the report.

However, if the whistleblower has concerns that the report may not be objectively investigated, they may submit the report to the Office – via the online form or the toll-free hotline 0800 221 213 or in person at the Office's registry.

In this context, it is important to emphasize that protection applies not only to the whistleblower, but also to other persons who may be affected by the report. From July 1, 2023, no one may threaten or take retaliatory measures against the whistleblower or a person close to the whistleblower, a natural person – entrepreneur or legal entity controlled by the whistleblower, in which the whistleblower has a stake, in which the whistleblower performs the function of a member of a legal entity, or for which the whistleblower performs work, a natural person who is an entrepreneur or a legal entity that controls a legal entity in which the whistleblower has a stake or in which the whistleblower performs the function of a member of a body of a legal entity, a person who provided assistance to the whistleblower in connection with the report, and the responsible person or a person involved in performing the tasks of the responsible person.

The authority to monitor compliance with the provisions on the provision of protection and the exercise of protection within the meaning of the Act, as well as the manner in which the employer or the person concerned treated the reporting person after the report was made, but also the authority to monitor compliance with the provisions on the internal system for reviewing reports, is entrusted to the Office. In addition, the Office is obliged to subsequently notify the competent authorities (e.g. the labor inspectorate) of any suspicion of retaliation against the whistleblower in connection with the report of anti-social activity.

Employers' obligations under the Act

1. Obligation to designate a responsible person

An employer who employs at least 50 employees and an employer who is a public authority employing at least 5 employees is obliged to designate an organizational unit or person to perform the tasks of the employer under paragraphs 4 to 7 and Section 11(1) of the Act. 1 of the Act; on the basis of a contract with the employer, a person who is not an employee may also be the responsible person. The responsible person must have the professional qualifications to perform the tasks under the Act. In a municipality and in a higher territorial unit, the chief controller is the responsible person.

The employer is obliged to enable the responsible person to perform their tasks independently, whereby the responsible person is bound only by the instructions of the statutory body of the employer or the statutory body of the parent company, unless the responsible person is directly the statutory body or a member of the statutory body.

The responsible person may also perform other tasks and duties, and the employer is obliged to ensure that none of these other tasks or duties lead to a conflict of interest. The employer may not penalize the responsible person for the performance of their tasks; if the responsible person is an organizational unit, the employer may not penalize the employees assigned to it.

The employer is obliged to provide the responsible person with the necessary cooperation in the performance of their tasks, in particular, they are obliged to provide them with sufficient resources necessary for the performance of these tasks and access to personal data and documents. The employer is also obliged to ensure that the professional qualifications of the responsible person are maintained on an ongoing basis.

The designation of the responsible person and the methods for submitting reports must be published and made available to all employees in a customary and readily accessible manner, with at least one method for submitting reports being available at all times. The employer is obliged to make information about the internal system for reviewing reports available in a concise, comprehensible, clearly formulated and easily accessible form, and is also obliged to facilitate the submission of reports.

2. Obligation to receive and investigate every report

The employer under paragraph 1 is obliged to receive and investigate every report within 90 days of its receipt; this period may be extended by a further 30 days, provided that the extension is notified to the reporting person, stating the reasons for the extension. The referral of the matter for handling in accordance with the Criminal Procedure Code or special regulations shall also be considered as verification of the report.

3. Obligation to maintain confidentiality

When verifying reports, the employer is obliged to maintain confidentiality regarding the identity of the reporting person.

4. Obligation to issue internal regulations – internal guidelines

The employer is obliged to issue internal regulations specifying the details of

a) the submission of reports,

b) the investigation of reports and the powers of the person responsible for investigating reports,

c) maintaining confidentiality regarding the identity of the reporting person,

d) recording reports

e) informing the whistleblower of the outcome of the investigation of their report,

f) processing personal data contained in the report

The law firm Hronček & Partners, s. r. o. is ready to provide you with comprehensive legal advice and services in connection with the obligations arising from the Act, in particular the obligations of the responsible person and related advice. We also specialize in the preparation of thorough internal guidelines in accordance with the Act, which we will prepare with an individual approach according to your needs.