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Legal Newsletter August 2023

Free access to information - disclosure of remuneration data

An amendment to the Freedom of Information Act has been in force since the beginning of this year. The amendment has mainly brought changes in the range of entities obliged to provide information and the scope of obligatory information. In addition, procedural changes have been introduced to reduce the possibility of chicanery requests.

Following a previous decision of the Constitutional Court, the law redefines the so-called public enterprise. According to the law, a public enterprise is an enterprise that carries out certain defined activities (e.g., transporting passengers by rail or operating energy distribution systems) or any enterprise with a majority shareholding of the state, region or municipality. According to the law, the explicitly mentioned information that a public enterprise is obliged to provide also includes information on the amount of remuneration of statutory and control bodies.

In the case of other employees, the public enterprise will then disclose the amount of the salary if the applicant demonstrates a public interest in providing the information. State-controlled enterprises have so far reacted rather negatively to these requests; the practice of deducing the range of employees whose salaries should be disclosed in the public interest is still lacking, although it is acknowledged that at least the remuneration of top management under the board of directors of the enterprise should be disclosed to information requesters. However, public enterprises will also have room for discretion, as the amendment also introduces the possibility to refuse a request that may be deemed to be intended to put pressure on the person to whom the information relates.


Upcoming amendment to the Labour Code

The Senate is discussing a draft amendment to the Labour Code that would simplify the service of documents for the purposes of establishing and changing employment relationships. In practice, this would mean a significant simplification compared to the current situation. At present, it is necessary to serve such documents by hand (albeit with the possibility of a fiction of service), which often causes difficulties.

The amendment, if passed in its current wording, will allow such documents to be served by e-mail and data box. In the case of e-mail, it will need to be an e-mail address not held by the employer - so it will not be possible to use work e-mail addresses for this purpose. An e-mail message will be deemed to have been received once the other party has acknowledged receipt. The notion of delivery will therefore no longer be an option in the case of e-mail.

In the case of data boxes, the difficulties described above are eliminated, since the date of delivery is shown on the delivery receipt and, where appropriate, the fiction of delivery will apply after ten days from the date of delivery of the document to the box. In the future, it is unclear whether, in the case of employees who are also self-employed and who have a business data box for that purpose, it will be possible to deliver them in that data box. In the case of documents from public authorities, such service is possible, but with the exclusion of the fiction of service. The question is whether this interpretation also applies in the case of employment law, an important function of which is to protect the employee.


New Whistleblower Protection Act

The new Whistleblower Protection Act came into force on 1 August. The law introduces obligations for employers to protect whistleblowers. The obligations apply to a relatively wide range of entities - all employers with more than fifty employees and also certain employers regardless of the number of employees, e.g., public authorities in certain sectors, certain employers operating in the capital markets, etc.

Under the law, compulsory employers are required to establish an internal system to enable them to report infringements in a way that does not reveal the identity of the whistleblower. The employer shall designate a competent person to receive, assess and subsequently take measures to remedy or prevent the infringement. However, the highest priority of the law is to protect the whistleblower, and therefore, if addressing an identified violation would put the whistleblower at risk, it will not be pursued.

The law also breaks contractual and some statutory confidentiality obligations to some extent. If a whistleblower reasonably believes that disclosure of information otherwise protected by contractual confidentiality, bank secrecy or confidentiality obligations under the Tax Code is necessary to uncover a violation, he or she will not be in breach of those obligations by making the report. However, the confidentiality of lawyers, notaries or tax advisers remains unaffected by the law.

Fines of up to CZK 1 million may be imposed for offences against the new law by obliged persons. A person who knowingly makes a false report may be fined up to CZK 50,000. The obligations arising from the law apply from 1 August. The only exception is for employers with less than two hundred and fifty employees, who have until 15 December this year to implement the notification system.