New Protected Disclosures Legislation to Enhance Protections for Whistle Blowers in Ireland

Published 15 febrero 2022

On  9 February 2022 the Government published the long-awaited Protected Disclosures (Amendment) Bill 2022 (the “Bill”) here, with the purpose of giving effect to Directive (EU) 2019/1937 and further enhancing the protections afforded to individuals under the current Protected Disclosures Act 2014 (the “2014 Act”).

This is a high level overview of the key changes as set out in the Bill:

• Definition of “Worker” – the category of protected persons currently includes, among others, employees, consultants, agency workers and individuals undergoing training. The Bill broadens this to also include shareholders, board members, job applicants and volunteers among others.

• Definition of “Penalisation” – penalisation will be broadened to include conduct such as the withholding of training, negative performance assessment or employment references, the failure to convert a temporary employment contract into permanent one, harming the worker’s reputation, blacklisting, early termination or cancellation of a contract for goods and services or of licences or permits and psychiatric or medical referral. 

• Definition of “Relevant Wrongdoing” – there will be a number of new types of relevant wrongdoings such as public procurement; breaches of financial services, products and markets, prevention of money-laundering and terrorist financing; product safety and compliance; transport safety; environmental protection; radiation and nuclear safety; data protection; consumer protection; and, breaches affecting the financial interests of the European Union and the single market.

• Establishment of Formal Reporting Channels – private companies will be required to establish internal reporting channels to make protected disclosures, which can be outsourced to third parties. Such a requirement will be staggered, starting with companies with at least 250 staff. It will come into effect for companies with at least 50 staff on 17 December 2023. These processes are to be monitored and enforced by the Workplace Relations Commission.

• Time lines in managing Establishment of Formal Procedures – there will be timeframes on feedback and follow up. Recipients of a protected disclosure will be required to acknowledge receipt of the disclosure within 7 days of receipt and to diligently follow up on any allegations made and give feedback to the reporting person within 3 months.

• Grievances – currently personal grievances are within the remit of the legislation save for, broadly speaking, complaints under the contract of employment. This was the position set out by the Supreme Court late last year in interpreting the 2014 Act. The Bill addresses this issue as it arguably results in too broad an application of the protection of the legislation to many kinds of grievances and complaints. The Bill excludes from “relevant wrongdoings” any “grievances about interpersonal conflicts between the reporting person and another worker” and also a “complaint by a reporting person… which concerns the worker exclusively”. Those matters can be dealt with through the grievance procedures and other procedures. This is of key importance.

• Burden of Proof – under the 2014 Act the burden of proof in establishing penalisation rests on the person who alleges wrongdoing on the part of another. The burden of proof will be reversed. Employers will be required to prove that an alleged act of penalisation did not occur because an individual made a protected disclosure.

• Establishment of the Office of the Protected Disclosures Commissioner – the Bill provides for the establishment of the Office of the protected Disclosures Commissioner within the Office of the Ombudsman who will handle and redirect protected disclosures made to prescribed persons.

• Interim Relief – the Bill proposes that interim relief can be obtained before the Circuit Court in all cases where a worker alleges penalisation. Currently, the 2014 Act allows this but it is limited to applications pending the determination of an Unfair Dismissal claim.

• Penalties – The Bill sets out a number of new offences including preventing someone from making a protected disclosure and failing to establish internal reporting channels. Under the Bill, anyone who commits an offence can be liable for fines not exceeding €250,000 or to imprisonment of up to 2 years, or both.

Key Takeaway for Employers

Employers should now be updating their policies and procedures in this area. Many employers have made changes in anticipation of the new legislation. If there is no policy in place, one should be implemented, taking into consideration the requirement for formal reporting channels and processes that will soon become a legal requirement. Any ambiguity about the type of grievances which will be dealt with as protected disclosures should also be redressed by businesses to ensure efficient and compliant processing of complaints.

If you have any queries or require any assistance in relation to any of the above, please contact Barry Reynolds or Chris Ryan.