An amendment to Act No. 54/2019 Coll. on the Protection of Whistleblowers of Anti-Social Activities and on Amendments to Certain Acts, as amended (“Whistleblower Protection Act“), adopted in May 2023, significantly affected the regulation of the internal system of investigation of employers’ reports (the “whistleblowing system”). To learn more about the amendment, read our previous post.
In this article we will take a look at the consequences of the amendment when applied to subsidiaries of a foreign parent established in Slovakia, with the obligation to maintain a whistleblowing system.
It is our experience that the following pattern prevails: the foreign parent company adopts its own global whistleblowing system, which is then used by its subsidiaries in each country. Thus, whistleblowers´ reports concerning Slovak subsidiaries are received and investigated only by the employees of their foreign parent company and Slovak whistleblowers have only global whistleblowing channels (e.g., an online form available on the foreign parent company’s web portal). However, as Slovak subsidiaries are involved, such a whistleblowing system set-up needs to be adapted to the Slovak legal framework.
How should a subsidiary and a foreign parent company share global or common resources with each other in order to comply with the Whistleblower Protection Act?
(1) Sharing of resources of a foreign parent company with a subsidiary established in the Slovak Republic
- Adoption of an internal regulation only in the form of an addendum to the global regulation of the foreign parent company is not sufficient
The Whistleblower Protection Authority of the Slovak Republic (“Authority“) states in its FAQ on the amendment that a company’s obligation to issue its internal whistleblowing guideline is non-transferable. An addendum or appendix to a parent company’s global internal whistleblowing guideline is not considered as an internal guideline of the subsidiary, but still as the guideline of its parent company, which the Authority does not consider sufficient to satisfy its obligations under the Whistleblower Protection Act. The subsidiary is therefore obliged to issue its own internal whistleblowing guideline despite the existence of a global system and internal guideline for the protection of whistleblowers at the level of its foreign parent company. However, the Slovak subsidiary may also include the parent company’s regulations in its internal whistleblowing guidelines, as long as they do not conflict with the Whistleblower Protection Act.
- Parallel existence of a global whistleblowing system of a foreign parent company
Within the multinational group to which the Slovak subsidiary belongs, there may be a global whistleblowing system available to Slovak employees, who may continue to use it. However, the global system must be clearly distinguished from the subsidiary’s internal whistleblowing system issued under the Whistleblower Protection Act. Employees must, inter alia, be transparently informed that a report submitted to the parent company’s system is not considered as a report addressed to the subsidiary’s internal system and that in such a case, they are not entitled to any protection granted by the Whistleblower Protection Act.
- Sharing of personnel resources of the foreign parent company is limited
The Whistleblower Protection Act permits private companies with fewer than 250 employees to use employees or members of the parent company’s governing bodies (e.g., the Legal and Compliance Dept.) to receive, acknowledge, and review whistleblower reports. Of course, the Slovak subsidiary is still obliged to designate a local responsible person who meets the requirements set out in the Whistleblower Protection Act and ensures the fulfilment of other obligations thereunder, in particular the registration of reports, communication with whistleblowers and concerned persons, as well as with the Slovak authorities. In this case, however, the responsible person has a much narrower range of duties and competences.
In companies with 250 or more employees, employees or members of the parent company’s bodies may only act as advisors in the review of reports, whereby they will only be made aware of the data on a need-to-know basis and will be bound by the obligation of confidentiality, both in relation to the data of the whistleblower, the data of the data subject or the content of the report, at least to the extent provided for by the Whistleblower Protection Act. The actual investigation of the reports in this case can only be carried out by a locally authorized responsible person of the subsidiary.
In both cases, we emphasize the need to conclude a written contract for the provision of services in the area of fulfilling the obligations under the Whistleblower Protection Act (with a strict confidentiality obligation) between the subsidiary concerned and its parent company, even though the said activities will be performed by employees or members of the parent company’s bodies.
(2)How to share resources among several Slovak subsidiaries?
- Sharing of the responsible person of one subsidiary with all subsidiaries (with fewer than 250 employees) based in Slovakia is possible
An employer, i.e., a subsidiary with fewer than 250 employees, may use the capacity of the responsible person of its Slovak sister company for the purposes of receiving, confirming and verifying reports (if it has 250 or more employees they may act only as advisors – for more details see point 1).
However, each subsidiary must always designate a responsible person from among its own employees.
- We do not recommend having one internal whistleblowing regulation for several subsidiaries based in Slovakia
The adoption of one common internal whistleblowing regulation for several companies may appear confusing, disincentivizing, and non-transparent for employees. For this reason, the Authority recommends the adoption of a separate internal whistleblowing guideline at the level of each Slovak subsidiary, in order to comply with the legal requirement for employers to disclose information on reporting channels in a clear, unambiguous and easily accessible form.
