19/07/2021 Briefing

Public sector employers and other employers who already have internal whistleblowing procedures in place, will likely need to make changes to those procedures in light of the anticipated changes to the legislative regime, as outlined in the General Scheme of the Protected Disclosures (Amendment) Bill, published in May.

Employers without existing whistleblowing systems but who now fall within the legislative scope (those with 250 plus employees from December 2021, reducing to those with 50 or more employees by 2023) will need to establish and maintain compliant whistleblowing procedures.

What needs to change?

The Protected Disclosures Act 2014 (“PDA”) provides for certain matters prescribed by the Directive but it must undergo substantial changes before the end this year.  Our earlier briefing sets these out in more detail (here) but in short, the Directive requires that the PDA must be extended to the private sector, must expand the definitions of ‘relevant wrongdoings’ and ‘penalisation’, must extend its protections to ‘workers’ and to those who make information available in the public domain, clarify the role of prescribed persons and introduce tighter timeframes for the processing of protected disclosures as well as access to legal aid.

All of these changes mean that employers will have additional obligations when the Protected Disclosures (Amendment) Bill becomes law.

What can we expect from the Bill?

For now, the general scheme of the legislation (the “Scheme”) provides an outline of the proposals employers and practitioners alike can expect to see enacted before 17 December.

Scope

As expected, the Scheme further clarifies the concept of a ‘Relevant wrongdoing’.  A relevant wrongdoing will now explicitly include specific breaches of EU law in areas including public health, public procurement, product safety, environmental protection and data protection.  Helpfully, the Scheme also specifies thatinterpersonal grievances’ relating to ‘conflicts between the reporting person and another worker’ fall outside the scope of the PDA and should be dealt with under other HR procedures (e.g. the grievance procedure).

Predictably, the Scheme suggests that the general scope of the PDA will be materially broadened to protect members of administrative, management or supervisory bodies, including non-executive members, shareholders as well as volunteers, unpaid trainees and job applicants or prospective employees.  It also provides that while employers will not be obliged to act upon anonymous disclosures, disclosures made by individuals whose identity is subsequently revealed will be protected under the PDA.

New employer obligations

The proposed new Bill will subject employers to certain prescribed actions in terms of the procedures that must be followed when a protected disclosure is made.  The increased specificity with which disclosures must be managed will mean that most employers will need to review and update their existing policies.

The Scheme proposes that employers must acknowledge a disclosure within seven days, ‘diligently’ follow-up and keep whistleblowers informed ‘in the most comprehensive way possible’ unless the disclosure can reasonably be considered minor and therefore, does not warrant the initiation of a formal process.  Feedback must subsequently be provided to the whistleblower within a reasonable timeframe (within 3 or 6 months following acknowledgment of receipt of the disclosure) and the final outcome must also be relayed to him/her.  Employees must have the ability to make disclosures either orally, in writing or both.

Under the existing regime, employers struggle with the requirement not to disclosure the identity of an individual whistleblower.  The Scheme proposes that under the new Bill, the identity of the accused wrongdoer will also need to be confidential.  The  Scheme preserves the existing legislative exceptions to this rule insofar as the identity of a whistleblower may only be disclosed by the business/recipient of the disclosure in circumstances where there is a reasonable belief that disclosure is necessary, for example, to prevent a crime.  However, in the event that one of the prescribed exemptions applies, the Scheme provides that the individual whistleblower must first be informed before their identity is disclosed, unless doing so would prejudice any ongoing investigation or prosecution.

Penalisation

The Scheme acknowledges that not all whistleblowers are in receipt of remuneration when they are penalised by an undertaking and it makes provision for compensation of up to €13,000 to be awarded to them by the WRC or the Labour Court.

At present, whistleblowers who feel they have been penalised can apply to the Circuit Court for interim relief to prevent their dismissal by reason of having made a protected disclosure.  Notably, as well as adding new examples to the list of actions constituting penalisation under the PDA, the Scheme looks to extend the obtainability of an injunction by an employee in respect of all forms of penalisation.

A change to the burden of proof in penalisation cases would pose additional challenge for employers.  Comments were made by the Minister for Public Expenditure and Reform that the burden of proof may shift, requiring employers to rebut the assumption that any alleged penalisation of an employee occurred as a direct result of that employee having made a protected disclosure.  As yet, employers will have been relieved to learn that no such change has actually been proposed.

Other

The Scheme also envisages the following;

  1. the introduction of measures to ensure whistleblowers have access to free and independent information in respect of the protections and remedies available to them;
  2. the establishment of a Protected Disclosures Office where disclosures to a ‘prescribed person’ may be made and to assist ministers in dealing with disclosures; and
  3. the introduction of new ‘effective, proportionate and dissuasive’ penalties for those who (a) hinder or attempt to hinder a worker in making a disclosure; (b) bring vexatious proceedings against a worker for having made a disclosure; and (c) disclose the identity of a whistleblower or ‘person concerned’ by way of a breach of their duty of confidentiality.

The exact provisions of the legislation remain to be seen and we will provide a further update in due course.  Given the relatively short timeframe before the new laws will take effect, we recommend that businesses begin to prepare now.