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Irish whistleblower protection to be strengthened

Out-Law News | 24 Jun 2021 | 9:02 am | 3 min. read

The Irish government has published proposed changes to its whistleblowing legislation, aimed at extending its scope and increasing protection to those disclosing corporate wrongdoing.

The Protected Disclosures (Amendment) Bill 2021 (41 page / 572KB PDF) will amend the Protected Disclosures Act 2014 to give effect to the European Whistleblowing Directive by the end of 2021. The government has approved the bill’s general scheme and the legislation will be implemented in the coming months.

In summary, the Protected Disclosure Act provides protections for certain individuals who make a protected disclosure in relation to a relevant wrongdoing. The bill proposes to extend these protections in a number of ways.

The bill broadens the definition of ‘worker’ – i.e. the person who can make a protected disclosure – to include shareholders, volunteers, unpaid trainees, a member of the administrative, management or supervisory body including non-executive members, and people who acquire information on a relevant wrongdoing during a pre-contractual process or recruitment process.

It will place an obligation on all employers with 50 or more employees, including private sector organisations, to establish and maintain internal channels and procedures for employees to make protected disclosures. However, this will not apply to organisations employing between 50 and 249 employees until 17 December 2023.

Entities relating to financial services, prevention of money laundering and terrorist financing, transport safety and environmental protection will have to comply with the requirements, irrespective of their size. Internal channels can be operated by a person or department or external third party.

The bill also broadens the definition of a relevant wrongdoing to include breaches relating to the internal market, competition law and state aid, corporate tax law, public procurement, financial services, transport safety, protection and welfare, risks to public health and to consumer protection and privacy and protection of personal data.

Protection from retaliation for making a protected disclosure has been extended to board members, volunteers and unpaid trainees, and individuals who acquire information on a relevant wrongdoing during a recruitment or other pre-contractual process.

Unpaid individuals have access to redress in the Work Relations Commission or the Labour Court, subject to a maximum compensation of €13,000.

All forms of penalisation will potentially be subject to an order for interim relief. This could include withholding of training, negative performance appraisals or employment reference and blacklisting. Currently, interim relief applies only in the context of alleged dismissal for having made a protected disclosure.

Organisations who receive protected disclosures will be required to acknowledge their receipt within seven days and to diligently follow up on the report unless, having assessed the matter, the prescribed person decides that the reported wrongdoing is minor, or that the disclosure does not contain any meaningful new information compared to a past report where the relevant procedures were concluded.

While the Protected Disclosures Act is silent on the level of feedback that needs to be given to the person making a protected disclosure, the proposed amendments would introduce a requirement for feedback to be given to the reporting person within a reasonable timeframe not exceeding three months from the acknowledgement of receipt. If no acknowledgement was sent to the reporting person, feedback must be provided within three months from the expiry of the seven-day period after the report was made for internal reporting.

The bill defines “feedback” as information on the action envisaged or taken as follow-up and the grounds for such follow-up. The person providing the feedback must be competent to follow up.

However, the bill currently does not provide for an obligation to accept and follow up on anonymous disclosures.

Employment law expert Jason McMenamin of Pinsent Masons, the law firm behind Out-Law, said:

“We would advise employers to monitor this development carefully and to keep their current position under review. For example, employers who already have internal whistleblowing procedures in place may need to make changes to their internal procedures in light of the European directive and the implementation of domestic legislation.

“Employers who do not have a whistleblowing system or internal channels and procedures in place but fall within the scope of the directive will need to establish such systems, subject to how and when the directive is implemented in Ireland,” McMenamin said.

The bill is currently in its early stages and will be subject to further negotiations and possible amendments.