Protected Disclosure (Amendments) Bill 2022
As Amended At The Select Committee Stage On 23rd March 2022
The Protected Disclosure (Amendments) Bill 2022 (the “Bill”) was published on 8th February 2022. The purpose of the Bill is to amend the Protected Disclosures Act 2014 (the “2014 Act”) to give effect to Directive (EU) 2019/1937 on the protection of persons who report breaches of European Union law (the “Directive”). The deadline for transposition of the Directive was 17th December 2021.
On 27th January 2022, the EU Commission commenced infringement proceedings against Ireland and 23 other Member States for delay in transposing the Directive. This will put pressure on the Government to finalise and enact the Bill. Some of the initial issues with the Bill have already been amended at the Select Committee Stage on 23rd March 2022. Two of the main issues remaining to be addressed are the retrospective application of the Bill and the drafting of the exclusion of personal grievances.
The significant amendments to the 2014 Act introduced by the Bill are summarised as follows:
- The definition of ‘worker’ is expanded to include volunteers, unpaid trainees, shareholders, board members (including non-executive) and members of administrative, supervisory and management bodies as well as job applicants who acquire information through the course of the recruitment process or during other pre-contractual negotiations.
- The definition of ‘relevant information’ has been broadened to be information that came to the worker’s attention ‘in a work related context’ rather than ‘in connection with their employment’.
- ‘Work related context’ is separately defined as current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information.
- The definition of a ‘relevant wrongdoing’ is extended to include a ‘breach’ which is defined as an act or omission that is unlawful and falls within the scope of certain EU acts relating to, amongst other things, public procurement, financial services, anti-money laundering and terrorist financing and consumer protection.
- The definition of ‘penalisation’ is broadened to include conduct such as the withholding of training, negative performance assessment, or employment references, the failure to convert a temporary contract into a permanent one, harming the worker’s reputation, blacklisting, early termination or cancellation of a contract for goods and services or of licences or permits and psychiatric or medical referral.
- A worker who was penalised, other than dismissal, may now also apply to the Circuit Court for interim relief pending the hearing of the case by the WRC. The application must be made within 21 days of the last incident of penalisation.
- The definition of a ‘detriment’ in respect of a tort action has been amended at the Committee Stage of the Bill to reflect the expanded definition of penalisation.
- The onus of proof has been reversed in respect of claims of penalisation and the tort of detriment. In both these claims the act or omissions shall be deemed to have been as a result of having made a protected disclosure unless the employer (or the person alleged to have caused the detriment) proves that it was based on duly justified grounds.
- The Bill excludes grievances about interpersonal conflicts between the reporting person and another worker and/or about his/her employer which relates exclusively to the reporting person. This clause appears to have taken into account the Supreme Court decision in Baranya v. Rosderra Irish Meats Group Limited. Unfortunately, it does not make reference to ‘public interest’ as in the UK and as suggested by the Supreme Court in this case. Therefore, this clause, as drafted, is unlikely to meet the intention of excluding personal grievances. Furthermore, grievances may impact on a number of people and may also involve a breach of a statutory obligation, which would get around the clause as drafted.
- Private sector employers with more than 50 employees are obliged to establish reporting channels and procedures for the making of a protected disclosure. Employers with at least 50 employees but less than 250 employees have until 17th December 2023 to comply with this requirement. The employee threshold is not applicable to public bodies or companies subject to EU laws in financial services, anti-money laundering, terrorist finance, transport safety, and protection of the environment. The Bill allows for the extension of this provision to bring in smaller companies by Order of the Minister if required.
- The reporting channels and procedures under the Bill require:
- The designation of an impartial person(s) who are competent to follow-up on reports and maintain communication with the reporting person;
- Enable reports to be made in writing, orally, or both
- Acknowledge the disclosure within 7 days, in writing
- Diligently investigate the disclosure to establish if there is a prima facie case
- Communicate with the person making the disclosure within 3 months updating them with the steps to be taken, or already taken
- Provide the person making the disclosure with the outcome of the investigation
- Information on the reporting channels and procedures, including the relevant prescribed persons and external reporting must be accessible to all workers.
- If a prima facie case is not met upon initial investigation, the case can be closed. If the employee makes the report internally and they do not believe it has been followed up or they have not received communication from the person receiving it, they may make an external report.
- The Bill does not require an Employer to follow up on anonymous reports, although they may do so. If the reporting person in this scenario is subsequently identified and penalised they will get the benefit of protection under the Bill.
- The Bill establishes the Office of Protected Disclosure Commissioner.
- Further it introduces criminal sanctions for:
- Penalisation or threatening penalisation against a reporting person
- Failing to establish internal reporting channels for protected disclosures
- Knowingly making a false disclosure; and
- Breaching the confidentiality provisions around the identity of the discloser
- The Bill, as currently drafted, applies retrospectively only to disclosures that have been made by persons employed in a public body prior to the enactment of the Bill. It permits them to request feedback on what action was taken on foot of their report in line with the provisions of the Bill. The Minister has stated that the Bill will be retrospectively applied to those who make a protected disclosure before the Bill is enacted but suffers penalisation/detriment after the Bill is enacted. He is awaiting advice from the Attorney General as to whether the Bill can be retrospectively applied to those who also suffered penalisation/detriment due to having made a protected disclosure before the Bill was enacted but have yet to issue legal proceedings. This is to be clarified at the Reporting Stage of the Bill.
Link to the Bill – https://data.oireachtas.ie/ie/oireachtas/bill/2022/17/eng/ver_a/b17a22d.pdf
Authors – Anne O’Connell, Nicola MacCarthy
31st March 2022
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
www.aocsolicitors.ie
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