HRLegal Newsletter Aug 2022: Recent Changes To Whistleblowing Rules: What Employers Need To Know

Welcome to the August edition of the HRLegal Newsletter. This monthly collection of focused features seeks to keep readers abreast of all updates in the quickly developing world of human resources and employment law. As we enter a new world and way of working, HRLegal is at hand for all advice in relation to all things people and HR. Our responsive and personable team of experts are available by phone, email and via our social media channels for any support they can provide.

Read on for explainers and features compiled by our experts, Una Clifford, Bláthnaid Evans and James Condon. For more on how we can assist your business, visit www.hrlegal.ie. 

Recent Changes to Whistleblowing Rules: What Employers Need to Know

James Condon, HR Business Partner

In this edition of the HRLegal Newsletter, we discuss the recent enactment of the Protected Disclosures (Amendment) Bill 2022 which has now been signed into law by the President of Ireland.  

This new piece of legislation will amend the already existing legislation under Protected Disclosures Act 2014. Interestingly, the 2014 Act was said to be one of the strongest whistle-blower pieces of legislation in Europe. The enactment of the Bill will extend the scope of protection provided under the 2014 Act and will give greater further clarity to both whistle-blowers and employers and will also provide for the transposition of the EU Whistleblowing Directive. Ireland initially failed in ensuring it met the EU Commission deadline of 17 December 2021 for transferring the directive into national law and so this enactment is very much welcomed.  

Some of the noteworthy amendments under this new legislation include – 

•    It will introduce a requirement for all private sector companies with 50 or more employees to establish formal reporting channels and procedures. Those channels and procedures will be subject to WRC inspections. A derogation until 17 December 2023 will be put in place as regards this requirement for organisations with between 50 and 249 employees. All public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the 2014 Act.

 •    The Bill broadens the definition of ‘worker’ – i.e., the person who can make a protected disclosure to include almost everyone associated with an employer, including volunteers, shareholders and job applicants; 

•    The Bill also reverses the burden of proof in civil cases so that it falls to the employer to provide that the alleged act of penalisation did not occur because the reporting person made a protected disclosure.

•    A designated person in every organisation must follow a strict timeline for acknowledging, providing feedback and dealing with complaints. Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation to: 1) Acknowledge  receipt of the protected disclosure within 7 days 2) Follow-up diligently on the information contained in the protected disclosure; and 3)Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months. 

•    There will now be criminal penalties for penalisation in certain cases, including breaching the duty of confidentiality as regards the identity of a reporting person. Penalisation will now also include the withholding of training, negative performance assessment or employment references, the failure to convert a temporary employment contract into a permanent one, harming the worker’s reputation, backlisting, early termination or cancellation of a contract for goods and services or of licences or permits and psychiatric or medical referral. 

•  A worker who is not in receipt of remuneration from the employer concerned may be awarded up to €15,000 under the Bill for a claim of penalisation. Where a worker is in receipt of remuneration from the employer concerned, a maximum amount of 260 weeks’ remuneration may be awarded. 

•    A new Office of the Protected Disclosures Commissioner will be established in the Office of the Ombudsman to support the operation of the new legislation. The commissioner will direct protected disclosures to the most appropriate body when it is unclear which body is responsible. 

The above changes will need to be noted by employers with policies and procedures being amended to ensure adherence. The introduction of the requirement for formal reporting procedures and timelines along with changes such as the reversal of the burden of proof pose interesting challenges. Businesses will need to put time and effort into creating suitable procedures that will allow for these amendments to be addressed. Businesses will need to ensure they provide training around areas such as reporting procedures and acknowledgement of protected disclosures as these now become key cornerstones of the new legislation in Ireland. 

If you or your business requires further information on this new legislation, or expert guidance in amending your policies and procedures, please contact Una at +353 1 639 3000, or visit www.hrlegal.ie.


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