Dismissing or reassigning a whistleblower: when it amounts to retaliation and what the Office can do

An employee alerts the responsible person to irregularities in invoicing. The report is investigated, a reorganisation follows some weeks later and their position is abolished. Management is convinced that the reasons are purely economic. The whistleblower sees it differently and turns to the Whistleblower Protection Office. A dispute of this kind is decided by whether the employer can prove that the step is unconnected with the report, and by whether it followed the procedure that the law requires for certain whistleblowers even before the act itself.

What the law treats as retaliation

The Slovak Act defines retaliation broadly:

retaliation means an act or omission in connection with the whistleblower’s employment or other similar relationship, prompted by the reporting or public disclosure of information about anti-social activity, which has caused or may cause unjustified detriment to the whistleblower or to a person under Section 1(4)(a) to (e); […]

— Section 2(l) of Act No. 54/2019 Coll. (unofficial English translation)

Examples include dismissal or immediate termination of employment, termination during a probationary period, failure to convert a fixed-term relationship into an indefinite one, reassignment, a change of duties or working hours, a reduction in pay or the withholding of a bonus, disciplinary measures, pressure, damage to reputation and, in the case of suppliers, withdrawal from a contract. Protection extends not only to the whistleblower but also to their close persons, companies they control, people who assisted them and the responsible person (Section 1(4)). It cannot be waived (Section 1(5)). Czech Act No. 171/2023 Sb. contains a similar list, which expressly includes an employment reference and a requirement to undergo a medical examination, and it also protects the whistleblower’s colleagues (Section 4(1) and (2)).

A protected whistleblower: not a step without the Office’s consent

The strictest regime applies to a protected whistleblower. An employee becomes one if they have made a qualified report of serious anti-social activity and a prosecutor or administrative authority has granted them protection at their request; what matters is the moment when notice of the grant of protection is delivered to the employer (Sections 4(1) and 6(1)). From that moment:

An employer may take a legal act or issue a decision in the employment relationship (the “employment act”) in relation to a protected whistleblower to which the whistleblower has not consented only with the consent of the Office; […]

— Section 7(1) of Act No. 54/2019 Coll. (unofficial English translation)

The Office grants consent only if the employer proves that the proposed act has no causal connection with the qualified report (Section 7(5)). In more complex matters it decides within 30 days, no appeal lies against the decision, and time limits and the probationary period do not run during the proceedings (Section 7(4), (6) and (7)). An act taken without consent is invalid (Section 7(8)). Consent is not required where the act confers an entitlement on the employee or where the termination of the relationship follows from a fact that does not depend on the employer’s assessment.

Other whistleblowers: suspension of effect

A whistleblower without protected status can also defend themselves. If they consider that an act taken in relation to them is connected with the report, they may, within fifteen days of the day on which they learned of it, ask the Office to suspend its effect (Section 12(1)). The Office will suspend the effect if the employer fails, within a reasonable period set by the Office, to prove that the act has no causal connection with the report (Section 12(2)). The suspension lasts 30 days from delivery of the confirmation to the whistleblower. If during that period the court receives the whistleblower’s application for an interim measure, the suspension is extended until the court’s decision on that application becomes enforceable (Section 12(6)). The Act does not require the whistleblower to inform the employer that such an application has been filed, so once the 30 days have elapsed it cannot simply be assumed that the suspension has ended.

Penalties and the burden of proof

An employer that takes an employment act without the Office’s required consent, penalises a whistleblower by retaliation or attempts to do so may be fined by the Office up to EUR 100,000 (Section 19(3)). Threatening a whistleblower with a penalty or penalising them is a separate administrative offence (Section 18(1)). The Labour Code prohibits discrimination on the ground of reporting criminal or other anti-social activity and the persecution of an employee for such a report (Section 13(2) and (8) of Act No. 311/2001 Coll.). In a dispute over termination of employment, the rule may also apply that where an employee informs the court of facts from which it may reasonably be inferred that the relationship was terminated because they asserted their rights and legally protected interests, the employer must prove that it terminated it on other grounds (Section 13(9)).

In the Czech Republic, exposing a whistleblower to retaliation is an administrative offence carrying a fine of up to CZK 1,000,000, including for an employer that permits the retaliation (Section 26(1)(a) and (3), Section 27(2) and (7) of Act No. 171/2023 Sb.). The injured party is additionally entitled to adequate satisfaction for non-pecuniary harm (Section 5).

How to proceed with a legitimate personnel step

A report does not make an employee untouchable. The employer must, however, be able to prove that it would have taken the step even without the report. Before deciding, we therefore recommend:

• checking whether the employee is a protected whistleblower and, if so, asking the Office for consent before the act,
• documenting the reasons for the step, ideally with materials that came into existence independently of the report and before it,
• separating the decision on the personnel step from information obtained in investigating the report, and protecting the whistleblower’s identity,
• assessing the timing and consistency with the treatment of other employees in the same situation.

If the employee has gone directly to the Office, the prosecution service or another institution, the protection applies in the same way; we explain this in whether an employee may go straight to an authority or to the media. We set up a reporting system that anticipates such situations through whistleblowing and the reporting system. If you are already considering a personnel step, we prepare the materials and the procedure so that it stands up, through termination of employment.