Laura Ensor Síobhra Rush April 6 2022 Proposed updates to Irish whistle-blowing legislation Lewis Silkin LLP | Employment & Immigration - Ireland Laura Ensor, Síobhra Rush Employment & Immigration IntroductionWhat categories of workers are protected by the legislation?What is a protected disclosure?Could a grievance brought by an employee in relation to their own individual circumstances amount to a protected disclosure?Can a worker make a protected disclosure anonymously?Are employers required to have a whistle-blowing procedure in place?What should a whistle-blowing procedure look like?What kind of conduct could be deemed to be penalisation of a whistleblower?Is there anything else employers should be aware of?CommentIntroductionThe government has published an updated version of the Protected Disclosures (Amendment) Bill 2022 (the Bill), which will amend current whistle-blowing legislation to strengthen the protection for whistle-blowers in Ireland.In 2014, the Protected Disclosures Act 2014 (the Act) was introduced to protect workers from dismissal or penalisation for making a protected disclosure in the workplace. In 2019, Directive (EU) 2019/1937 of 23 October 2019 was published, on the protection of persons who report breaches of EU law (the Directive).Member states had until 17 December 2021 to transpose this Directive into law. Although the protections afforded by the Directive were already largely incorporated into Irish law, some further changes are required in order for the Act to fully align with the Directive.The government published the Bill in February 2022 and it is still before Dáil Eireann. Further amendments may be made before the Bill is enacted but, given that the deadline for transposition has already expired, it is anticipated that the Bill could soon be enacted.This article addresses some key questions in relation to the changes the Bill (in its current form) will bring about once enacted.What categories of workers are protected by the legislation?The Act provides protection to:employees;consultants;contractorsagency workers; andindividuals on work experience.As a result of the changes required by the Directive, it is likely that protection will be extended to:shareholders;volunteers;members of the administrative;management or supervisory body of an undertaking (eg, non-executive directors); andapplicants for employment.What is a protected disclosure?A protected disclosure is a disclosure of information, which, in the reasonable belief of the worker making the disclosure, tends to show a relevant wrongdoing, and which came to the attention of the worker in a work-related context.The Act currently lists the following matters as relevant wrongdoings:an offence has been, is being or is likely to be committed;a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or contract for services;a miscarriage of justice has occurred, is occurring or is likely to occur;the health or safety of any individual has been, is being or is likely to be endangered;the environment has been, is being or is likely to be damaged;an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur;an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; orinformation tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.The Bill proposes to add a breach of EU law that has occurred, is occurring or is likely to occur to the above list. Such a breach includes an act or omission that is unlawful and falls within the scope of the EU acts set out in the Directive and which concern areas including (but not limited to):public procurement;financial services;prevention of money laundering and terrorist financing;product safety and compliance;consumer protection and protection of privacy and personal data.It also includes acts or omissions affecting the financial interests of the European Union and the internal market.In addition, the Bill proposes to add to the definition of relevant wrongdoing the situation where an attempt has been, is being or is likely to be made to conceal or destroy information tending to show any matter falling within any of the above categories.Could a grievance brought by an employee in relation to their own individual circumstances amount to a protected disclosure?Yes, currently, the Act does not require that there be a public interest element to the disclosure, and the recent Supreme Court decision in Baranya v Rosaderra Irish Meats Group Limited widened the open door for employee grievances to be considered protected disclosures in certain circumstances (the case held that complaints about the employee's own health or safety could fall within the remit of a protected disclosure).The Bill proposes to exclude interpersonal grievances (grievances about interpersonal conflicts and complaints to, or about, an employee's employer which concern the worker exclusively) from the scope of the Act. As such, employers can take comfort that individual complaints of bullying or harassment would likely not amount to a protected disclosure.However, because there is no proposal to include a public interest requirement, there may be other individual grievances that would not come within the exclusion of interpersonal grievances (eg, complaints about an individual worker's health and safety, or in relation to an individual worker working excessive hours).Can a worker make a protected disclosure anonymously?Yes, a worker can report wrongdoing anonymously. Helpfully, the Bill provides that generally an employer will not be obliged to accept and follow-up on anonymous reports (in certain sectors, however, there may be legislation which requires employers to act on anonymous reports). Where a worker's identity subsequently becomes known the protection against penalisation will extend to them.Subject to some limited exceptions, a worker's identity must not be disclosed without their consent except to those persons who the person that has received the protected disclosure reasonably considers necessary for the purposes of receiving, or following up on, the protected disclosure. If that is necessary, they must be informed in writing that their identity will be disclosed (together with the reasons for the disclosure) except in certain limited circumstances such as where this notification would jeopardise the effective investigation of the relevant wrongdoing.Are employers required to have a whistle-blowing procedure in place?Yes, the Bill requires private sector employers with more than 50 employees to establish, maintain and operate internal reporting channels and procedures for the making of protected disclosures and in order to follow-up on such complaints. These can be operated internally by a designated person or department or can be provided externally by a third party on behalf of the employer. Employers with between 50 and 249 employees will have until 17 December 2023 to put such measures in place.Therefore, employers with over 250 employees will be required to have a whistle-blowing procedure in place and employers with between 50 and 249 employees will have until 17 December 2023 to put such measures in place. Certain employers such as public bodies are already required to have whistle-blowing procedures in place regardless of the number of employees.What should a whistle-blowing procedure look like?The Bill sets out further detail regarding what the internal channels and procedures should include, and certain timelines for dealing with a protected disclosure, as set out below. These should be reflected in the employer's whistle-blowing procedure:The employer should have channels for receiving protected disclosures that are designed, established and operated in a secure manner that ensures the confidentiality of the identity of the person making the protected disclosure and any persons referred to in the protected disclosure.The protected disclosure should be acknowledged in writing not more than seven days after receipt.An impartial competent person (or persons) (the designated person) should be designated to follow-up on the protected disclosure and this person should maintain contact with the person making the disclosure, request further information where necessary and provide feedback to that individual.There is scope for an employer to carry out an initial assessment of the complaint, which does not currently exist under the Act. If, having done this, the designated person decides that there is no evidence that a relevant wrongdoing has occurred, they should close the procedure, or refer the matter to another procedure such as the grievance procedure. As soon as practicable, they should notify the person who made the disclosure in writing of this decision and the reasons for it. If the designated person decides there is evidence that a relevant wrongdoing may have occurred, they must take appropriate action to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned.Feedback should be provided to the person who made the disclosure within a reasonable period, but no more than three months from the date of the acknowledgement of receipt of the protected disclosure.Where the person who makes the protected disclosure requests feedback, further feedback should be provided to that individual at intervals of three months until the procedure relating to the protected disclosure is closed.What kind of conduct could be deemed to be penalisation of a whistle-blower?The Act provides protection against penalisation to workers who report a relevant wrongdoing. Penalisation is defined in the Act as any act or omission that affects a worker to their detriment, and includes:suspension, lay-off or dismissal;demotion or loss of opportunity for promotion;transfer of duties, change of location of place of work, reduction in wages or change in working hours;the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty):unfair treatment;coercion, intimidation or harassment;discrimination disadvantage or unfair treatment;injury, damage or loss; andthreat of reprisal.The Bill will significantly broaden this list, to include any direct or indirect act or omission that occurs in a work-related context, is prompted by the making of a protected disclosure and causes or may cause unjustified detriment to a worker. This includes the following:ostracism;withholding of promotion;withholding of training;a negative performance assessment or employment reference;failure to convert a temporary employment contract into a permanent one;failure to renew or early termination of a temporary employment contract;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; andpsychiatric or medical referrals.By way of a reminder, where an employer is found to have penalised a worker for having raised a protected disclosure, the Workplace Relations Commission (the WRC) can award compensation of up to five years' remuneration. However, in practice, awards do not tend to be near this level, and the largest award that we have seen is two years' gross remuneration in a dismissal claim.However, employers must be mindful that, where previously (under the Act) an employee who claimed that they were dismissed due to having made a protected disclosure could apply to the Circuit Court for an injunction to restrain the dismissal, under the Bill this right will now extend to any act of penalisation. The injunction will continue until the underlying penalisation claim has been dealt with by the WRC.Is there anything else employers should be aware of?The burden of proof is changing. The Bill provides that in any proceedings brought by an employee to the WRC where the employee is claiming penalisation for raising a protected disclosure, there will be a presumption that the penalisation was as a result of the worker having made a protected disclosure. Therefore, the employer will have to prove that the act or omission concerned was for some other justifiable reason (and not as a result of the protected disclosure).In addition, the Bill provides for a number of new offences on the part of employers, including where:it hinders a worker from making a report;it penalises or threatens to penalise a person who made a protected disclosure;it breaches the duty of confidentiality; orit fails to put internal reporting channels and procedures in place.It is also an offence for a person to make a protected disclosure containing any information that the person knows to be false. Depending on the offence, the fines range from €5,000 and/or imprisonment for up to 12 months on summary conviction, up to €250,000 and/or imprisonment for a term not exceeding two years for conviction on indictment.CommentEmployers should review and update their whistle-blowing procedures so that they comply with the provisions of the Bill. They should also ensure that any managers are live to the provisions of whistle-blowing law in Ireland.Employers with more than 50 employees who do not have a whistle-blowing procedure in place should take steps to put one in place. It is recommended that employees with less than 50 employees also have a whistle-blowing procedure in place in order to ensure any whistle-blowing complaints are dealt with appropriately. In addition, it will be easier to defend any claim brought by an employee to the WRC in circumstances where the employer has such a procedure in place and is able to show that it followed its procedure in investigating the employee's complaint.Employers and managers should also be mindful that certain employee grievances could amount to a protected disclosure and that protected disclosures do not need to be made in writing and can be made verbally. Care should be taken to investigate such complaints in accordance with the appropriate procedure and to ensure that employees do not face any detriment or retaliation as a result of raising such a complaint.For further information on this topic please contact Laura Ensor or Síobhra Rush at Lewis Silkin by telephone (+353 1566 9876) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.