Enhanced protection for whistleblowers in Ireland expected imminently

Background: Irish whistleblower protections

Earlier this year, the Protected Disclosures (Amendment) Bill 2022 (the “Bill”) was introduced in Ireland. This new piece of legislation amends the Protected Disclosures Act 2014 (the “2014 Act”). The Bill passed the final stages in Seanad Eireann (the Irish Senate) on 7 July 2022 and will now pass to the President to be signed into law. Ireland already has comprehensive whistleblower protections in place in the form of the 2014 Act, however, transposition of the Whistleblowing Directive will require amendments to be made to the 2014 Act in order to harmonise the rules for the protection of whistleblowers across the EU. 

Key provisions of the Bill  

The Bill is intended to extend the scope of protection provided under the 2014 Act and provide greater clarity for both whistleblowers and employers. Below are some of the key provisions of the Bill: 

• Definition of a worker: The scope of workers has been extended to include provision for volunteers, unpaid workers, board members and shareholders, job applicants and those undergoing training. 
• Definition of “relevant information”: Under the 2014 Act, this definition was limited to information which came to the attention of a worker in connection with their employment. Under the Bill, this has been broadened to include information that “came to the attention of the worker in a work-related context.” 
• Definition of a “relevant wrongdoing”: Under the 2014 Act, a protected disclosure is defined as being the disclosure by a worker of “relevant information” that has come to their attention in connection with their employment and which they reasonably believe to be a “relevant wrongdoing” (see below).
• Personal grievances: Following the Supreme Court’s decision in Baranya v Rosderra Irish Meats Group Ltd, the Bill will amend this definition to exclude “interpersonal grievances exclusively affecting the person making the disclosure.” Complaints relating to interpersonal grievances in the workplace will therefore not constitute a protected disclosure and are better dealt with under the employer’s grievance procedure. 
• Penalisation: The scope for penalisation has been extended under the Bill to include activities such as the withholding of training, negative performance assessment or employment references, the failure to convert a temporary employment contract into a permanent one, harming the worker’s reputation, backlisting, early termination or cancellation of a contract for goods and services or of licences or permits and psychiatric or medical referral. 
• Burden of proof: The Bill also reverses the burden of proof in civil cases so that it falls to the employer to provide that the alleged act of penalisation did not occur because the reporting person made a protected disclosure. 
• Formal channels and procedures: The Bill places an obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. Organisations with between 50 and 249 employees will have until 17 December 2023 to put these procedures in place. All public sector organisations (regardless of size) are already required to have formal procedures in place under the 2014 Act. This will be monitored and enforced by the Inspectorate of the WRC. 
• Acknowledgement and timelines: Employers and prescribed persons who receive protected disclosures will now be required to acknowledge them, follow up and give feedback to the reporting person within three months. 
• New office of the Protected Disclosures Commissioner: The Bill provides for the establishment of the Office of the Protected Disclosures Commissioner which is within the Office of the Ombudsman who will handle and redirect protected disclosures made to prescribed persons. The Commissioner will direct protected disclosures to the most appropriate body when it is unclear which is body is responsible. This will ensure that all protected disclosures will be dealt with appropriately.  
• Changes to interim relief provisions: The interim relief measures contained in the PDA 2014 will be extended to include acts of penalisation other than dismissal. Employees must apply to the Circuit Court within 21 days immediately following the date of the last instance of penalisation or such longer period as the court may allow. To act as a deterrent from such behaviour, damages for penalisation can be reduced by up to 25 per cent where the reporting person knowingly reported false information 
• Compensation: A worker who is not in receipt of remuneration from the employer concerned may be awarded up to €15,000 under the Bill for a claim of penalisation. Where a worker is in receipt of remuneration from the employer concerned, a maximum amount of 260 weeks’ remuneration may be awarded.  It should also be noted that any award of compensation can be reduced by 25 per cent where the investigation of the relevant wrongdoing was not the sole or main purpose for making the protected disclosure concerned.

"Relevant wrongdoing"

The definition of what constitutes a “relevant wrongdoing” has been broadened under the Bill and now includes areas relating to: 

• Public procurement; 
• Financial services, products and markets, and prevention of money laundering and terrorist financing; 
• Product safety and compliance; 
• Transport safety; 
• Protection of the environment; 
• Radiation of the environment; 
• Radiation protection and nuclear safety; 
• Food and feed safety and animal health and welfare; 
• Public health; 
• Consumer Protection; 
• Protection of privacy and personal data, and security of network and information systems; and 
• Breaches that otherwise affect the financial interests of the EU or defeat the purpose of EU law. 

New offences 

The Bill makes it an offence to: 

• hinder or attempt to hinder a worker in making a report; 
• penalise or threaten to penalise or cause to permit any other person or threaten penalisation; 
• bring vexatious proceedings; 
• breach the duty of confidentiality in section 16 regarding the identity of reporting persons; 
• make a report containing any information that the reporting person knows to be false or; 
• fail to establish, maintain and operate internal reporting channels and procedures.

Key takeaways for employers 

The Directive transposition date was 17 December 2021. As Ireland is in breach of this date, it is likely that once the Bill has been signed into law by the President, its effect will be almost immediate.

Employers should familiarise themselves with their new obligations under the Bill with a view to updating and implementing policies where necessary. Employers should also ensure that adequate training is provided to designated persons, particularly given the new obligations surrounding timelines for acknowledging and responding to protected disclosures. 

For further information on managing protected disclosures or reviewing and updating policies, please contact Marianne Norton by emailing marianne.norton@ogier.com 

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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