Can a job candidate be a whistleblower?

Persons categorised as whistleblowers have a number of rights protecting them against possible impacts of reporting a breach of law. Whistleblowers are, among others things, protected against retaliation by the employer. In this context, it is necessary to identify who is granted such protective rights. 

Article 4(3) of the Directive says that persons whose work-based relationship is yet to begin may also be whistleblowers in cases where information on breaches has been acquired during the recruitment process. Persons that may act as whistleblowers are listed in Article 4 of the Polish bill. This list does not mention job candidates, despite the fact that they are listed in the Directive. Please note, however, that the said list is exemplary and is preceded by a more general definition. The statute (and the protection it guarantees) will therefore also apply to other persons who report or publicly disclose information about a breach of law they have acquired in a work-related context. 

So, will it also apply to a job candidate reporting a breach at the recruitment stage? Can such a person be a whistleblower regardless of whether he or she is hired?

There are some doubts about it. Article 4(2) of the bill is vague and so it is difficult to make this issue clear cut. The said provision of the statute also applies to persons who report information about a breach of law they have acquired in a work-related context prior to their employment. However, it is one thing to become aware of a breach of law prior to employment (and then to report it once the job candidate is hired) and another thing is to report it already at the recruitment stage (regardless of whether he or she is hired) The literal interpretation of the provision itself may raise some doubts as to whether the bill only intends to allow future employees to report breaches that happen during recruitment or whether it intends to allow reporting already at the recruitment stage. 

Despite these doubts, the answer to the above questions seems to be yes in the view of the bill in its current form. Basically, a candidate may become aware of irregularities during the recruitment process in a work-related context. Irregularities concerning the processing of personal data during the recruitment process (e.g. requesting personal data not listed in the Labour Code during recruitment) may be a perfect example here. A job candidate is a natural person and information about unauthorised processing of personal data during recruitment is obtained in a work-related context. Therefore, it seems that the job candidate should be allowed to use the internal reporting channel. The job candidate should also enjoy the protection guaranteed to whistleblowers by the Directive and the bill. 

Further provisions of the bill also seem to follow the above interpretation. “Information about a breach of law” is defined as information about breaches that have been identified, among others, in an entity where the whistleblower participates in the recruitment process or other pre-contract negotiations. Furthermore, Article 24(6) of the bill says that a job candidate should be informed about the applicable internal whistleblowing procedure already at the recruitment stage. The candidate needs to be informed about the applicable procedure so that he or she can use it. 

The above may suggest that not only the person hired by the employer but also the person who participated in the recruitment process and became aware of a breach of law at that stage may be a whistleblower. It seems, therefore, that a candidate reporting a breach of law may become a whistleblower even before the recruitment is completed and regardless of whether he or she is hired. But we need to wait for the final version of the statute to resolve this issue.

Theoretical issues discussed above should be addressed in the context of protection given to whistleblowers against retaliation by the employer (or prospective employer). No retaliation must be taken by the recruiter to whom a whistleblower reports a breach of law. The refusal to establish an employment relationship with a job candidate who has reported a breach of law could be considered an act in breach of the above obligation. 

This, however, may be controversial in practice. It may be problematic to separate the issue of freedom granted to employers to carry out a recruitment process and to conclude employment contracts with selected candidates from the issue of retaliation taken by employers. In particular, however, whistleblower protection should not be understood as a tool used by the whistleblower to make the employer hire him or her for fear of being accused of retaliation. Therefore, employers are urged to exercise extreme caution in such a situation. 

If you have questions about whistleblower protection, please contact our experts.