Whistleblowing Law – What Changes are Coming?

by Elizabeth Ryan, partner in the Employment Law & Benefits Team at Mason Hayes & Curran

The Protected Disclosures (Amendment) Bill 2022 (the 2022 Bill) is intended to amend the Protected Disclosures Act 2014 (the 2014 Act). This is the first of a series of articles in which we will discuss possible changes to whistleblower law in Ireland if this Bill is enacted into law in its current form.

Substantial changes to the 2014 Act are required for Ireland to comply with EU law as it relates to protected disclosures. Therefore, it is important for employers to familiarise themselves with likely changes in order to be prepared when they become law.

Who is protected under the 2022 Bill?

The Protected Disclosures Act 2014 applies to disclosures made by “workers” of relevant information that came to that worker’s attention in connection with their employment. Workers are defined in the 2014 Act as including employees, consultants, agency workers; essentially anyone who is contracted to provide work for an employer in the public or private sector. The 2022 Bill significantly expands the group of people protected disclosure legislation would apply to. The definition of “worker” in the 2022 Bill includes:

• Employees
• Consultants
• Agency workers
• People engaging in work experience
• Shareholders
• Volunteers
• Prospective employees involved in the recruitment process or contract negotiations, and
• Ex-employees

What is penalisation under the 2022 Bill?

One of the protections that whistleblowers have under the 2014 Act is protection from being penalised for having made a protected disclosure. Penalisation is defined in the 2014 Act as including actions such as: suspension, lay-off, dismissal, demotion, intimidation, harassment, discrimination or threat of reprisal. The 2022 Bill includes an expanded definition of penalisation so that it would include actions such as:

• Withholding of training
• A negative performance assessment or employment reference
• Harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income
• Blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry
• Early termination or cancellation of a contract for goods or services
• Cancellation of a licence or permit, and
• Psychiatric or medical referrals

The 2022 Bill provides that if an employee makes a claim of penalisation to the Workplace Relations Commission (WRC), any of the above actions will be deemed to have been a result of them having made a protected disclosure, unless the employer proves that the act or omission was based on duly justified grounds.

What policies and procedures will employers need to put in place?

One of the changes proposed in the 2022 Bill is the requirement for private employers with more than 50 employees to establish, maintain and operate internal reporting channels and procedures for the making of protected disclosures. Suitable documented procedures and reporting lines must also be maintained for the purposes of follow-up with the person who made the protected disclosure (the reporting person) after they have made the disclosure. These requirements will apply to employers with 250 or more employees when the Bill becomes law and will apply to employers with between 50 and 249 employees from 17 December 2023. These requirements include:

• Establishing reporting channels and procedures for protected disclosures
• Providing workers with clear and easily accessible information about these procedures
• Designating a person, department or third party to receive protected disclosures
• Designating a person or department (that can be the same as above) to diligently follow-up, maintain communication and provide feedback to the reporting person
• Acknowledging receipt of a protected disclosure within seven days
• Providing feedback to the reporting person within a reasonable period, being not more than three months from the date the acknowledgement of receipt of the report
• Communicating in writing to the reporting person of the final outcome of any investigation triggered by the report

Putting in place and operating these policies and procedures may put an onerous burden on employers and will require resources, time and training. In that regard, it will be important to consider as a first step updating, or putting in place, a whistleblowing policy for your workplace.

Conclusion

While the Protected Disclosures (Bill) 2022 has not been finalised and there is not yet a concrete enactment date, there are certain changes, including those set out above that will be required to comply with EU law. Employers need to take action now to become fully apprised of the provisions of the Bill in order to prepare for compliance when the Protected Disclosures Act 2014 when amended.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

About the author
Elizabeth, (“Liz”) is a partner in the Employment Law & Benefits Team. Liz has considerable experience in acting for clients in contentious employment litigation before specialist employment fora and the Civil Courts.
Liz also provides non-contentious employment law advice to clients, ranging from the application of employment statute in the workplace, to assisting clients in drafting employment contracts and policies.
She has advised on several high profile company reorganisations involving the application of the transfer of undertakings regulations and collective redundancy programmes.
Liz has extensive experience in the designing and provision of employment law training courses and workshops for clients. She is a lecturer and tutor for the Law Society of Ireland and is asked regularly to speak at conferences on employment law and related topics.
Liz also advises us on all aspects of health and safety law, including that which applies to bullying and stress in the workplace.

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