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Minister for Public Expenditure and Reform, Michael McGrath TD, published the ‘General Scheme of Protected Disclosures (Amendment) Bill’ following approval from by Government in May 2021. This Bill is a broad policy outline of proposed legislation, the purpose of which is to provide for incorporating the EU Whistleblowing Directive into Irish law. Katie Ridge, Head of Employer Relations at Adare Human Resource Management provides details on what employers need to know.
The Whistleblowing Directive – European Union Directive on the Protection of Persons Reporting on Breaches of Union law – was enacted back in December 2019 and requires that Member States implement substantial changes to the current protected disclosures /whistleblowing legislation by December 2021.
Changes you need to know about and prepare for
One of the most significant changes to the Protected Disclosures Amendment (PDA) is the proposal to extend the scope of persons who are protected under the 2014.
The proposed legislation would extend the provisions of Whistleblowing protection to private sector employers with 50 plus employees and oblige such employers to establish an internal reporting process, follow up on breach reports and provide protections for whistleblowers; a requirement which is currently only mandatory for public sector employers. A derogation from this requirement will apply to undertakings that employ between 50 and 249 employees until 17th December 2023.
The proposals would extend the definition of a “worker” so that it includes other categories of people, including shareholders; volunteers or unpaid trainees; members of the administrative, management or supervisory body of an undertaking (e.g. board members); and those who acquire information during a recruitment or other pre-contractual process (e.g. job applicants).
Key provisions of the proposed legislation
The proposed legislation would amend the definition of “relevant wrongdoing” (i.e. the categories of wrongdoing that may be disclosed under the legislation). The amendments will:
- protect people who disclose breaches of a range of EU laws that are provided for in the EU Whistleblowing Directive; and
- exclude from the definition of “relevant wrongdoing” any matters concerning interpersonal grievances. A person who raises personal grievances will not have special protection under the Act of 2014 but will still be able to raise grievances through normal internal procedures.
- Recipients of anonymous disclosures will not be obliged to accept and follow up on anonymous disclosures. However, a person who makes an anonymous protected disclosure – and whose identity subsequently becomes known – will still be entitled to the protections of the legislation.
Employers and prescribed persons (who are designated to receive protected disclosures under the Act) will be subject to an obligation to:
- acknowledge receipt of the protected disclosure within 7 days in most instances;
- follow-up on the information contained in the protected disclosure (with certain exceptions);
- provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months (can be extended to 6 months in duly justified cases); and
- communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.
A Protected Disclosures Office will be established within the Office of the Ombudsman. This Office will:
- receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the Act of 2014;
- support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
- in cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.
The proposed legislation will increase the range of remedies available to persons who allege that they have been penalised for making a protected disclosure. The facility of a temporary injunction from the Circuit Court before the full hearing of the claim will be extended in all cases of alleged penalisation (currently an injunction is only available in cases of dismissal).
Non-employees who have been penalised will be eligible to be awarded up to €13,000.
As an employer, what should I do?
While the precise provisions of the legislation will not be enacted until December 2021, private sector employers will need to ensure that they carry out a review of their existing whistleblowing policy to ensure that they have appropriate procedures in place to deal with any protected disclosures that are received by them.
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