On 12 May 2021, the General Scheme of the Protected Disclosures (Amendment) Bill (GS) was published by the Minister for Public Expenditure and Reform. The purpose of this amending legislation is to transpose Directive (EU) 2019/1937 (Whistleblowing Directive) into Irish law. Ireland is one of only ten countries within the EU with strong legal protections for whistle-blowers already in place. The legislation will bolster the current position under the Protected Disclosures Act 2014 (2014 Act) and go further than the requirements of the Whistleblowing Directive.
Scope of Protection Widened
Under the 2014 Act, whistle-blower protection is limited to information that comes to a worker’s attention “in connection with the worker’s employment”. The GS proposes to broaden this scope to a wider cohort of whistle-blowers in line with those protected under the Whistleblowing Directive. Volunteers, unpaid trainees, board members, shareholders, suppliers, and job applicants will benefit from whistle-blower protection for the first time.
The GS states that persons who make anonymous disclosures are still protected if their identity is subsequently revealed and they suffer penalisation. Significantly, however, recipients of anonymous disclosures are not obliged to accept and follow up on them.
Broader Definition of ‘Relevant Wrongdoing’
“Relevant wrongdoings” are the types of wrongdoing about which an individual may make a protected disclosure. The GS proposes to amend the current definition of a “relevant wrongdoing” to include all matters within the scope of the Whistleblowing Directive. These include specified breaches of EU law across financial services, products and markets, prevention of money laundering and terrorist financing, product safety and compliance, consumer protection, protection of privacy and personal data, and security of network and information systems, amongst others. Helpfully, the GS provides that “interpersonal grievances” that relate to conflicts between the reporting person and another worker do not fall within the revised definition of a “relevant wrongdoing” if the grievance can be addressed through a separate procedure e.g. grievance procedure.
Private sector organisations with 50 or more employees are obligated to establish formal channels and procedures for their workers to make protected disclosures. An external third party may operate these if they are not provided internally. However, there is a derogation to this requirement for organisations with 50 to 249 employees until 17 December 2023.
The threshold of 50 employees will not apply to companies subject to EU laws in financial services, prevention of money laundering and terrorist financing, transport safety and protection of the environment. These companies are already subject to reporting obligations.
Public bodies are also not subject to the 50-employee threshold, as there is an existing obligation under the 2014 Act for such bodies, regardless of size, to have internal procedures for protected disclosures.
Additional Recipient Obligations
The GS proposes to enhance the obligations of recipients of protected disclosures. In particular, a recipient must acknowledge receipt of the protected disclosure within seven days and have an “impartial person” in place to diligently follow up on disclosures.
The Whistleblowing Directive requires whistle-blowers to be informed of the follow-up to their disclosure “in the most comprehensive way possible”. Recipients of disclosures must inform the whistle-blower of actions taken or envisaged to be taken in respect of their disclosure within three or six months, and communicate the “final outcome of investigations” to the whistle-blower.
Forms of Penalisation Expanded
The GS broadens the definition of penalisation to include, amongst other acts:
- withholding training,
- negative performance assessments or employment references,
- harm (including to the person’s reputation or financial loss),
- failure to renew or convert a fixed-term contract into a permanent contract where the worker has a legitimate expectation of a permanent offer of employment.
Where penalisation for making a protected disclosure is alleged, a person may apply to the Circuit Court for interim relief. At present, interim relief is only available where a person alleges that they have been dismissed for making a protected disclosure. Under the GS, applicants may apply for interim relief in respect of all forms of penalisation. Applications for interim relief must be made to the Circuit Court within 21 days immediately following the date of the last instance of penalisation.
Although not included in the GS, the Government announced that the burden of proof in whistleblower penalisation cases in the Workplace Relations Commission and the courts will be reversed. It will be assumed that the alleged penalisation has occurred because of the making of a protected disclosure unless the employer can prove otherwise.
Establishment of a Protected Disclosures Office
A Protected Disclosures Office (PDO) will be established within the Office of the Ombudsman. The PDO will provide support and advice to the Minister for Public Expenditure and Reform in respect of handling protected disclosures.
What Should Employers do now?
Ireland was already ahead of the curve in the field of whistle-blower protections since the introduction of the 2014 Act. However, the amendments proposed in the GS will strengthen protections. The amendments will require comprehensive employer policies to manage and effectively address protected disclosures. While many employers already have a whistle-blowing policy in place, the proposed legislation will require revisions to existing policies to ensure compliance.
The GS will undergo pre-legislative scrutiny before the final text of the Bill is published.