The Government recently published the General Scheme of the Protected Disclosures (Amendment) Bill 2021.
The aim of the Bill is to transpose the EU Whistleblowing Directive which seeks to harmonise whistleblowing standards and protection in Europe. Since 2014 Ireland has a legislative framework governing whistleblowing. The amendments in the proposed Bill will further enhance what is already regarded as a very robust statutory regime for whistleblowers in Ireland.
What are the new provisions?
Widened scope of those covered by the Act
- The Bill will widen the scope of those covered by the legislation. The definition of worker is being amended to include a volunteer, an unpaid trainee, and a job candidate. It will also include an individual who is a shareholder and a member of the company's administration including a non -executive member.
Expanded definition of "relevant wrongdoing"
- The concept of "relevant wrongdoing" is also being widened to include breaches of EU law in certain areas such as financial services, product safety, food safety and public health. It also brings clarity to an area which previously caused uncertainty – it excludes interpersonal grievances from its ambit. These should be channeled through the HR route.
Expanded definition of "penalisation"
- The definition of penalisation is also being amended to include acts such as a negative performance assessment or employment reference and a psychiatric or medical referral.
- It introduces redress for those who are not directly employed (ie a job applicant) and proposes awards of up to €13,000 for those penalized for whistleblowing.
New reporting procedures
- Private sector organisations with 50 or more employees will be required to establish formal channels and procedures for their employees to make whistleblowing complaints. This is like the requirement currently in existence for public sector bodies. An external third party may operate these if they are not provided internally.
- It prescribes new timeframes where employers and prescribed persons receive a protected disclosure under the Act. They must now acknowledge receipt of the protected disclosure within 7 days and have an impartial person available to follow up diligently on it and report back on the actions taken or envisaged to be taken within 3 months.
- There will be no requirement for employers to progress anonymous protected disclosures. However, an anonymous whistleblower will still be entitled to protections if their identity subsequently emerges.
New Protected Disclosures office
- A new Protected Disclosures Office will be established within the Office of the Ombudsman. This will receive and redirect, as appropriate, protected disclosures made to prescribed persons under the 2014 Act and in cases where there is no suitable alternative authority , follow up directly on disclosures referred to the office.
Reversal of burden of proof
- The burden of proof in penalization cases will be reversed. This means it will be assumed that the alleged penalization has occurred because of a worker making a protected disclosure and it will be up to an employer to prove otherwise. Whether this reversal will be in the final draft remains to be seen as it is quite a radical departure from the current burden of proof in employment litigation cases.
The amended whistleblowing regime will require more detailed policies and procedures by employers. Employers should start review their existing policies and be ready to amend and update them once the detail of the new legislation is published. The Directive must be transposed by 17 December 2021 so employers should start their review sooner rather than later.