Employee liability in the context of reporting a breach of law

by ​Karolina Sieraczek

16 September 2022

As the Whistleblower Protection Bill is expected to become law, the question arises if an employee can be held liable for damage resulting from such reporting?

This issue is crucial to employees in the context of exercising their rights as whistleblowers.

When is a whistleblower protected by law

An employee who reports or publicly discloses information is protected by law. However, this rule has exceptions.

It is important to check whether the employee had reasonable grounds to believe that the reported or publicly disclosed information was true at the time of reporting or public disclosure and that it involved a breach of law. If these requirements are met, the employee is protected by law and the employer cannot claim compensation for damage suffered. The employee is also protected against any form of retaliation.
Moreover, the reporting employee is released from liability for damages due to, among other things, defamation, violation of personal rights or confidentiality. This list is open-ended, however, the bill provides for exceptions to that rule. It does not apply, for example, to information in the meaning of the classified information protection laws or information that must be kept secret by medical or legal professionals.
An employee may each time request the discontinuation of any proceedings initiated against them for reporting or public disclosure.

Of course, details of how the employee came into possession of the information disclosed are also relevant. It must not have been obtained by committing a criminal offence. This is an important thing to consider when assessing the possible consequences of reporting or public disclosure.

Reporting false information

The situation will also be different if the employee has knowingly reported or publicly disclosed false information. Then the employer will be entitled to claim compensation from the employee in the amount of at least the average monthly salary. However, only the minimum amount of compensation has been set. Compensation will be based on the value of damage caused to the employer. And it is not only the employer who will be entitled to claim such compensation but also any person who has been harmed.

All the above-mentioned circumstances should be considered each time a breach is reported or publicly disclosed.

Given that various versions of the Whistleblower Protection Bill do not make any fundamental changes to whistleblower liability for reporting, it seems reasonable to assume that the Bill will become law in this or similar form.