by Anne Lyne March-23-2022 in Employment Law, Workplace Investigations
The Protected Disclosures (amendment) Bill 2022 was published by the Minister for Public Expenditure and Reform, Michael McGrath TD, on 09 February 2022 and has cast the subject of protected disclosures/whistleblowing into the limelight once again.
The Bill, once enacted, will amend the current whistleblowing regime set out in the Protected Disclosures Act 2014 and give effect to Directive (EU) 2019/1937. This will in turn strengthen and widen the current protections provided to whistle-blowers under Irish legislation.
Ireland already had a progressive whistleblowing regime in place, so the new Act will not radically alter the Irish system, but it will add a number of compliance measures that businesses need to be aware of. It will also give greater information and options to whistleblowers.
Key provisions of the Bill
Widening the definition of worker
Significantly, once enacted, the Bill will extend the personal scope of the Act to include shareholders, board members, volunteers, unpaid trainees and job applicants.
This amendment to the definition of worker is of major significance in circumstances where it introduces a whole new cohort of individuals who will, for the first time, be offered protection under Irish law, when making a protected disclosure.
Are grievances included?
Notably, the Bill provides that “interpersonal grievances” relating to conflicts between the reporting person and another worker, (for example, bullying, harassment, discrimination) fall outside the scope of the Bill and should be dealt with by procedures set down by an organisation’s HR department or such other person equipped to deal with same.
Employers should however be mindful of the recent Supreme Court decision of Baranya v Rosderra Irish Meats Group Limited [2021] IESC 77, where it was held that, in short, if a personal grievance interacts with a protected disclosure, it does not preclude it from being a protected disclosure.
Furthermore, the Bill proposes to broaden the definition of “relevant wrongdoings” and will incorporate all of the relevant wrongdoings set down in the Directive. These include, for example, contravention of legislation relating to money laundering and terrorist financing, product safety and compliance and protection of privacy and personal data.
Anonymous disclosures
Whilst under the Bill a worker who makes an anonymous disclosure and is subsequently identified and suffers penalisation, will be protected, in circumstances where an anonymous report of wrongdoing is made to a legal entity, the entity is not obliged to accept and follow up on same.
Obligations on Employers
Under the Bill, all private sector organisations with 50 or more employees will be required to formally establish and maintain internal channels and procedures for the making of protected disclosures by their employees.
The Bill provides that employers should ensure that they have procedures for making a protected disclosure and follow-up in place, which include but are not limited to:
- secure channels for receiving protected disclosures.
- acknowledgement of the receipt of a protected disclosure within seven days.
- follow up diligently by an impartial person who will maintain communication with the reporting person.
- the provision of clear and easily accessible information regarding the procedure for making a protected disclosure; and
- feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within three months (or six months in justified cases).
The aforementioned channels and procedures should allow protected disclosures to be made both orally and in writing. Employers should also ensure that accurate records of protected disclosures are kept.
Furthermore, the threshold of 50 employees will not apply to public bodies. This is in line with the Act which provides that all public bodies, regardless of size, must have internal procedures for protected disclosures in place.
Notably, private sector organisations with between 50 – 249 employees will not be obliged to establish and maintain internal channels and procedures until 17 December 2023.
Unsurprisingly, the threshold of 50 employees will not apply to organisations subject to EU laws in the areas of financials services and the prevention of money laundering and terrorist financing as these EU laws already impose obligations on such organisations to have internal reporting systems in place.
Establishment of a Protected Disclosures Office
The Bill provides for the establishment of a Protected Disclosures Commissioner in the Office of the Ombudsman. The Commissioner will be tasked with, for example: ensuring protected disclosures are directed to the most appropriate body when it is unclear which body is responsible and following up directly on disclosures referred to him/her where a prescribed person or suitable person cannot be identified.
Burden of proof
In civil proceedings, the burden of proof will be reversed so that it will now fall to the employer to provide that any alleged act of penalisation did not occur because the individual made a protected disclosure. This is in contrast to other employment legislation which set out that the burden of proof does not shift to the employer until a claimant makes a prima facie case against them.
Protection and information provided to whistle-blowers
Employees who have suffered penalisation for having made a protected disclosure will be able to apply to the Circuit Court for interim relief. Therefore, interim relief will no longer be limited to employees who have suffered penalisation by way of being dismissed. The application for interim relief must be made within 21 days of the last instance of penalisation.
Furthermore, a website will be established by Minister Michael McGrath TD, which will contain information on, for example, the making of a protected disclosure and the rights of the persons concerned.
Compensation for Penalisation
In terms of compensation for penalisation, employees may be awarded up to 5 years’ remuneration. This is in contrast to non-employees (such as job applicants) who have been penalised who may be awarded up to €15,000.
Penalties
It will be an offence for an employer who, for example:
- fails in their obligation to establish internal reporting channels. (An employer who commits such an offence can be liable to pay a fine not exceeding €250,000 or imprisonment for a term not exceeding two years, or both).
- penalises or threatens penalisation or causes or permits any other person to penalise or threaten penalisation against, for example: a reporting person or a facilitator.
- hinders or attempts to hinder a worker from making a report or taking vexatious proceedings against reporting persons; and
- breaches the confidentiality provisions around the identity of an individual who has made a protected disclosure.
Whilst there are changes being brought in by the legislation, organisations should already be familiar with the concepts for a number of years. However, employers would be well advised to ensure that they have all relevant internal channels and procedures in place prior to the legislation coming into force and to make sure that the workplace is equipped to deal with complaints as they arise. For further information or to discuss, please contact Anne Lyne alyne@hayes-solicitors.ie at Hayes solicitors LLP.
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About the Author
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Anne Lyne
Anne is a partner in the Employment team at Hayes solicitors. She has considerable experience advising and representing employers and employees on all aspects of the employment relationship from pre-employment matters to termination.