Barry Walsh is a Partner and Head of Employment & Benefits in our Dublin office. In addition to advising a wide range of corporate and institutional clients on all aspects of Irish employment law, Barry contributes regularly to specialist domestic and international HR publications and to the general business media on employment law issues.
In our latest insight on whistleblowing, Barry answers questions on the EU Whistleblowing Directive and its implications for Irish employers.
What is the current position in relation to whistleblowing protection in Ireland?
Whistleblowing legislation has been in place in Ireland since 2014 as a result of the Protected Disclosures Act 2014 (the "PD Act"), a major development at the time which introduced significant legal protection for employee whistleblowers and consequently new and serious obligations for employers.
What impact will the Directive have in Ireland?
Despite the fact that the extent of the existing protection afforded by the PD Act means that many of the elements required by the Directive are already covered under Irish law, the Irish Government has published a general scheme (essentially an early draft of a bill), the Protected Disclosures (Amendment) Bill 2021 (the "Bill"), which will amend the existing PD Act.
The Bill includes a number of key enhancements to existing whistleblowing protections and measures, such as:
Widening the scope of individuals who are afforded protection beyond employees to include volunteers, interns, job applicants, suppliers, shareholders and non-executive directors;
Expanding the ambit of "relevant wrongdoings" for the purposes of whistleblowing by encompassing breaches of EU law in various prescribed areas including public procurement, financial services, product safety, transport safety, food safety, animal welfare, public health, consumer protection, privacy and protection of personal data – but, importantly, it excludes interpersonal grievances;
Considerably extending the definition of "penalisation" to include acts such as a negative performance assessment and psychiatric or medical referrals;
Extending the existing injunction style interim relief potentially available from the Circuit Court in dismissal cases to make it potentially available in other cases of penalisation under the Act in addition to dismissal.
Requiring that certain private sector employers must have whistleblowing procedures and internal channels on the following basis (Currently all public sector organisations are already required to have a formal whistleblowing policy in place under the PD Act):
Private entities with more than 250 employees – from 17 December 2021
Private entities with between 50 - 249 employees – from 17 December 2023
Organisations with less than 50 employees may be required to comply following a risk assessment of the organisation’s activities and the ensuing level of risk.
Establishing a Protected Disclosures Office within the Office of the Ombudsman;
Introducing Legal Aid for whistleblowers seeking to bring employment-related claims; and
Imposing strict timeframes on employers for acknowledging, following up and providing feedback to whistleblowers.
Will employers be required to process anonymous disclosures?
It is currently proposed that employers will not be obliged to progress anonymous protected disclosures. However, an anonymous whistleblower will still be entitled to protections if their identity subsequently emerges.
What other things should employers in Ireland be thinking about?
For the moment, the general scheme of the Bill provides only a broad outline of the proposed legislation. We must await more advanced drafts before we know more and what is currently proposed could be altered.
However, whatever its final form, the Bill is likely to signal a significant change in approach to whistleblowing in Ireland.
Employers need to review existing policies or consider preparing new procedures now. Training and awareness, especially for management, is also key.
By ensuring that effective internal whistleblowing arrangements are in place, organisations will have an opportunity to become aware of concerns at the earliest stages, helping to avoid or limit financial and reputational risks.
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