Changes to whistleblowing legislation in the pipeline

The Protected Disclosures Act 2014 is the relevant piece of legislation dealing with whistleblowing and protected disclosures in Ireland. That is to change, however, when the new Protected Disclosures (Amendment) Bill 2022 is enacted and commenced.

This new bill extends protection to other persons by extending the definition of a worker to include shareholders, trainees, board members, volunteers, and job applicants. Currently protection is only afforded to workers and information that comes to a worker’s attention in connection with the worker’s employment.

Recipients of anonymous disclosures do not have to act or follow up on them. But a person who makes a disclosure anonymously is protected if their identity becomes know and they are penalised.

This bill also extends the definition of what is a ‘relevant wrongdoing’. It will now include a breach (an act or omission that is unlawful) such as in the area of financial services, public procurement, anti-money laundering, consumer protection and terrorist financing.

However, the bill specifically excludes grievances about interpersonal differences in the workplace. These should be dealt with through the normal grievance procedures in the workplace.

However, note that the Irish Supreme Court held in the Baranya v Rosderra Irish Meats Group Limited case that interpersonal grievances could fall within the scope of the Protected Disclosures Act 2014.

50 or more employees?

Organisations with 50 or more employees must now establish internal reporting procedures and channels to deal with protected disclosures.

There is a time derogation in this regard until December 2023, but this does not appl to public bodies or certain other companies subject to EU laws in the areas of financial services, anti-money laundering, transport safety. Also, the 50-employee limit does not apply to these companies but a ministerial order will be sufficient to grant a derogation for companies with less than 50 employees in certain sectors.

The bill contains a new definition of penalisation which includes 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.

A person can apply to the circuit Court for interim relief if they allege they are being penalised for making a disclosure. Currently, interim relief is only open to an employee who has been dismissed for making a protected disclosure.

There is an important change regarding the burden of proof. The burden of proof now rests with the employer who must prove the act of penalisation or detriment did not arise from having made a protected disclosure but from some other justifiable ground.

The bill also contains new offences including the hindering of a worker from making a report, penalising or threatening to penalise and failing to set up and maintain internal reporting channels and procedures. These offences can be penalised by fines ranging from €75,000 to €250,000 and/or imprisonment of up to 2 years.

What is set out above is what is currently contained in the bill. As it makes its way through the legislative process some changes and amendments can be expected.