The Protected Disclosures (Amendment) Bill 2022 (the Bill), which will transpose the EU Whistleblowing Directive (Whistleblowing Directive), was published last month and amends and extends the existing Irish framework for the protection of whistle-blowers under the Protected Disclosures Act 2014 (the 2014 Act). There is some impetus to the adoption of the Bill as Ireland, along with many other EU Member States, has missed the December 2021 deadline for transposition of the Whistleblowing Directive. Our previous article on the general scheme for the Bill is available here.
Extended Scope
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 Bill extends the scope of protection by expanding the definition of “worker” to include volunteers, shareholders, trainees, board members (including non-executive members), and job applicants. Notably, the Bill states that persons who make anonymous disclosures are still protected if their identity is subsequently revealed and they suffer penalisation, however, recipients of anonymous disclosures are not obliged to accept and follow up on them.
Relevant Wrongdoing
“Relevant wrongdoings” are the types of wrongdoing about which an individual may make a protected disclosure. The Bill expands the definition of a relevant wrongdoing under the 2014 Act to include a ‘breach’, defined as an act or omission that is unlawful and falls within the scope of certain EU acts relating to, amongst other things, public procurement, financial services, anti-money laundering and terrorist financing (AML/TF) and consumer protection. In contrast to the Supreme Court’s determination in Baranya v Rosderra Irish Meats Group Limited that interpersonal grievances could fall within the scope of the 2014 Act, the Bill specifically excludes grievances about interpersonal conflicts between the reporting person and another worker or about his/her employer which relates exclusively to the reporting person. Such matters are not considered relevant wrongdoings and should instead be dealt with through applicable complaints procedures.
Internal Reporting Channels and Procedures
Organisations with 50 or more employees are obliged under the Bill to establish internal reporting channels and procedures for their workers to make protected disclosures (which can include the engaging of an external (third) party to provide the reporting channels). A time-limited derogation from this requirement, until 17 December 2023, is available for organisations with 50 to 249 employees. Neither the derogation nor the 50-employee threshold is applicable to public bodies or companies subject to EU laws in financial services, AML/TF, transport safety and protection of the environment as these organisations are already subject, regardless of size, to existing obligations to have internal procedures for protected disclosures.
Perhaps in an effort to address concerns raised as to the necessity to protect whistle-blowers in organisations with less than 50 employees, the Bill allows for the designation, by way of ministerial order, of a particular class(es) of sub-threshold employers as subject to the requirement to establish internal reporting channels and procedures.
Internal reporting channels and procedures must ensure:
- workers are provided with information on reporting channels in place, including whether anonymous reports are accepted,
- written or oral reports, or both, are facilitated,
- the identity of the reporting person is kept confidential,
- reports are acknowledged in writing within seven days of receipt,
- an impartial person is designated by the employer to follow up on reports, maintain communication with the reporting person and provide feedback to the reporting person within three months of the report,
- proper records are kept and maintained in accordance with the Bill.
Penalisation
The Bill contains a new definition of “penalisation” which covers any direct or indirect act or omission prompted by the making of a report and causes or may cause unjustified detriment to the worker including discrimination, disadvantage or unfair treatment, negative performance assessment or employment references and blacklisting.
Where penalisation for making a protected disclosure is alleged, the Bill allows a person apply to the Circuit Court for interim relief in respect of all forms of penalisation. At present, interim relief is only available where a person alleges that they have been dismissed for making a protected disclosure. Applications for interim relief must be made to the Circuit Court within 21 days immediately following the date of the last instance of penalisation.
The Bill reverses the standard burden of proof: employers will now have to discharge the burden of proof as penalisation will be deemed to have resulted from the employee having made a protected disclosure unless the employer can prove the act or omission was based on duly justified grounds. Currently, the 2014 Act, caps the compensation that the WRC can award a worker at 260 weeks’ renumeration. The Bill extends this to provide for the payment of compensation, up to a maximum of €15,000, to a worker not in receipt of remuneration.
New Offences
The Bill creates several new offences including the hindering of, or attempting to hinder, a worker in making a report, penalising, or threatening penalisation or causing or permitting any other person to penalise or threaten penalisation, and failing to establish, maintain and operate internal reporting channels and procedures. These offences attract penalties in the form of fines ranging between €75,000 and €250,000 and/or a maximum of 2 years’ imprisonment.
What should employers do now?
The Bill is proceeding through the legislative process, during which it may be amended before it is signed into law. Despite Ireland being ahead of the curve in terms of protections for whistle-blowers, the proposed legislation will require employers to act swiftly to prepare for the new requirements and to update their policies to enable reports to be accepted and followed up in line with the finalised legislation.
Our Employment and Benefits team is here to help you navigate the proposed new legislation. For further information, please contact Jeffrey Greene, Catherine O’Flynn, Nuala Clayton, or your usual William Fry contact.
Contributed by Ellen O’Duffy
