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Doubts about headcount thresholds triggering the obligation to implement the whistleblower procedure in the company


​by Jarosław Hein

29 September 2022


How to calculate headcount to determine whether the company must implement a whistleblower procedure within a relevant deadline? Who should be counted in the 50 or 250 workers?

The legislators are still working on the whistleblower protection act (“the Whistleblower Act”) implementing the EU whistleblowing directive  [1]. The most recent draft act published on the website of the Government Legislation Centre is dated 22 July 2022. This is already the fourth version of the legislative act being developed by the government.

Internal whistleblower procedure

The wording of the new draft Whistleblower Act raises various doubts, including those concerning an issue of paramount relevance to businesses, namely the obligation to establish an internal whistleblower procedure.

Following the whistleblowing directive, the draft act says that a company hiring at least 50 people is obliged to establish an internal whistleblower procedure. At the same time, according to the draft act’s final provisions and provisions adapting the Polish legislation to the EU one, private entities hiring at least 50 and less than 250 people will have to establish an internal procedure by 17 December 2023, whereas entities hiring over 250 people will have to fulfil this obligation within 2 months after the legislative act comes into force. 

Headcount thresholds and the obligation to implement an internal whistleblower procedure

At first glance, it seems that there should be no problems with identifying entities obliged to implement the internal whistleblower procedure and with calculating headcount to see whether the above-mentioned thresholds are met. The headcount may not be so easy to determine in practice, though.

First of all, it should be noted that the first version of the draft Whistleblower Act of 14 October 2021 set the thresholds of 50 and 250 employees. At the same time, it defined the term “employee” by reference to the Labour Code and the term “temporary employee” based on the regulations on the employment of temporary staff. The draft act’s current wording refers to workers of a legal entity without defining this term.

There is no doubt that workers include employees in the meaning of the Labour Code and temporary employees. However, doubt may arise when it comes to persons working under the contract of mandate, B2B contract, and trainees, interns or voluntary workers.

Let us analyse the issue using the following simple example:


ABC sp. z o.o. hires 40 people under the contract of employment and 6 people under the contract of mandate. Additionally, it has concluded B2B contracts with 2 people who work exclusively for ABC. The company also hires 1 trainee who performs simple office tasks for remuneration. Finally, the company uses cleaning services offered by Mr Smith, a sole proprietor hiring 3 people who clean ABC’s offices 3 times a week.
Is ABC sp. z o.o. obliged to implement an internal whistleblower procedure due to reaching the threshold of 50 workers, as stipulated by the draft act?


Obviously, the headcount calculation should include the 40 employees of ABC sp. z o.o. The departure from the term “employee” towards a broader term “worker” in the subsequent versions of the draft Whistleblower Act as regards headcount calculated to see whether it has reached the threshold suggests that this number should also cover those hired under the contract of mandate. In the similar vein, the calculation should take into account also trainees and B2B contractors, who can be classified as those performing work under a relationship other than employment, including under a civil law contract. This makes up 49 persons, and it remains now to be decided how to treat Mr Smith. Mr Smith, who provides typical cleaning services for ABC sp. z o.o. and who performs those services through his employees, should not be included in the headcount triggering the obligation to implement the internal whistleblowing procedure. Nor should the employees working for Mr Smith be included in that calculation. 

Thus, in the given example, it can be assumed that ABC sp. z o.o. hires maximum 49 workers. Consequently, ABC sp. z o.o. is not obliged to introduce the internal whistleblower procedure.

Please note that the explanatory notes to the draft Whistleblower Act do not say how to interpret the term “worker” and who should be counted as a worker to see whether the company has reached any of the thresholds. The adopted wording of the legislative act will therefore give rise to doubts in practice. Unless this issue is formulated in more detail in the draft provisions or clarified in the course of the legislative process, it is safer for companies to adopt a broad interpretation of the term “worker” and, should there be any doubts in this regard, to implement an internal whistleblowing procedure.

For more information, feel free to contact our experts.

[1] 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, p. 17 and OJ L 347, 20.10.2020)


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Jarosław Hein

Attorney at law (Poland), Tax adviser (Poland)


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