Despite recommendations by international organizations, Czech legislation on whistleblowers is fragmentary and does not offer a complex legal regulation of the phenomenon, or even a definition of the term. The current protection of whistleblowers – i.e., employees or former employees of an organization who inform competent institutions of illegal or unethical practices in that organization – is only dealt with in the Czech Act on Banks, Act on Savings and Credit Co-operatives, Capital Market Undertakings Act, and Civil Service Act (or, more precisely, in the Government Decree implementing the Civil Service Act). Some vague protection of whistleblowers is also provided by the general provisions of the Labor Code and other regulations, which, however, do not specifically address the protection of whistleblowers as such. Currently, two acts are being discussed in the Czech Parliament aimed at providing higher labor-law protection of whistleblowers in both the private and public sectors.
The first draft, developed by the Minister for Human Rights on the basis of the Action Plan to Fight Corruption, was approved by the Government in February 2017 and has subsequently been forwarded to the Parliament. The basis for the new legal position, according to the draft, should be the amendment to the Civil Procedure Code, as the Minister for Human Rights does not deem it necessary to adopt a separate law on this matter. Pursuant to the draft, only those “whistleblowing” messages which are made in good faith and in respect of which the public interest in learning of the misconduct outweighs the harm suffered by the protected interests concerned (for example, the duties of loyalty or confidentiality) should be protected. The draft also transfers the burden of proof from the employee to the employer, which will in practice mean that an employer who dismisses an employee after the employee reports a misconduct must prove that the dismissal has been made lawfully.
An “alternative” draft of an act protecting whistleblowers coming from the workshop of the Minister of Finance was submitted to the Government in April 2016. This act would apply to workers in employment relationships and in civil service, professional soldiers, and members of other security forces. However, protection would be granted only to whistleblowers who have disclosed specific offenses (e.g., corruption-related crimes, rape, fraud), while reports of other criminal acts, administrative torts, and other illegal misconduct would not be protected. This apparently contradicts international recommendations and unjustifiably discriminates between disclosures of equally serious crimes by granting protection to only some and denying protection to others (while the selection of crimes seems to be random). The draft suggests that whistleblowers should be protected from the moment they make their disclosure. Whistleblowers would be allowed to contact the Prosecutor’s Office on an anonymous basis, through a dedicated website. Once the disclosure is assessed, the state prosecutor may offer protection to the person making it – i.e., may give him or her the status of a protected whistleblower – and the employee may then safely step out of anonymity. Once the employee obtains protected whistleblower status, the employer may not end his/her employment or service relationship, either by notice of termination or immediately, nor may the employer transfer the whistleblower to another job or position without the consent of the regional branch of the Labor Office.
It should be noted that it is not clear at this point whether either of these two drafts will be given effect, nor what the final form of the adopted legislative measures will be.
Apart from the planned legislation in this matter, the Czech Constitutional Court has recently provided guidance on how to grasp this issue in two cases, issuing verdicts establishing that the principle of proportionality needs to be applied and that it is necessary to compare the public interest with employee loyalty. In the first case, there was a public interest in protecting the environment; the second case concerned the requirement of non-discriminatory treatment in employment relationships. In both of these verdicts, the necessity of employee loyalty prevailed over the public interest, as employees provided information not only to the competent public institutions, but also to other private subjects, and even to potential business partners. Therefore, the Constitutional Court denied the provision of protection to the employees, and rejected both complaints outright. It is, however, probable that decisions of the Constitutional Court would be different if the employees had not disseminated the information in the private sphere.
By Jaroslav Tajbr, Head of IP/IT, and Pavlina Hlavenkova, Associate, Noerr
This Article was originally published in Issue 4.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.