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Significant Changes Proposed in the Protected Disclosures (Amendment) Bill 2021

Introduction

In 2019 the EU passed a Directive requiring each EU country bring in legally binding protections for whistle-blowers. This so called “EU Whistleblowing Directive” will also require Ireland to update and amend the Protected Disclosures Act 2014 (the “Act”) by the end of this year.

The heads of bill of the Protected Disclosures (Amendment) Bill 2021 (the “Bill”), were published on May 11th and they reveal some of the upcoming proposed changes which may have serious implications for employers.

This article will focus on the two areas of change that we feel are most relevant for employers. These are the increased scope of the Act and remedies available under it, and the new employer policies and procedures that will be required by the amendment Bill.   

Scope and Remedies

From an employer’s perspective, possibly the most significant amendments proposed concern expanding both the scope of persons covered by the Act and the legal remedies open to them.

Currently only employees who allege they have been penalised due to making a protected disclosure enjoy the protections of the Act. Up until now the definition of an ‘employee’ has been a very wide one however Head 21 of the Bill proposed to widen it further and bring in shareholders, unpaid volunteers, persons applying for jobs, as well as non-executive members of an organisation’s supervisory body under the scope of the Act.

For volunteers, persons applying for jobs and other unpaid persons covered by the Act, they will gain the option of referring alleged penalisation to the Workplace Relations Commission (“WRC”) as an employee would but any award they might receive will be limited to €13,000.  They can opt to refer their complaint to the courts instead, under the tort of detriment created by the Act.

Perhaps the most significant change to the remedies available concerns the expansion of the scope of interim relief. At the moment, an employee who has been dismissed can bring an application to the Circuit Court for an order for interim relief, continuing their employment, until their case is decided at the WRC. Under Head 21 section 4 of the Bill, all forms of penalisation, not just dismissal, will be potentially subject to an order for interim relief.

This will provide employees, who allege penalisation resulting from them making a protected disclosure, with the potential to bring an application to the court asking that their employer be compelled to reverse or refrain from implementing the alleged act of penalisation. For instance, where an employee alleges that they are being reassigned or the scope of their role changed and that this change is alleged to be a form of penalisation resulting from them making a protected disclosure, they could potentially seek a Circuit Court order requiring the employer reverse the change until the matter is resolved before the WRC or Courts.

It also must be noted that. the widening of the scope of the persons covered by Act, together with the option of interim relief could have significant affects to disputes in organisations such as charities, sports clubs and other voluntary organisation.  A  non-employee, such as a volunteer board member, could potentially challenge their removal from their voluntary position via an application for interim relief where they allege it is an act of penalisation relating from a protected disclosure.   

Policies and Procedures

The Bill proposes expanding the requirements for organisations to have reporting channels for protected disclosures.  Head 9 of the Bill proposed to require all organisations with employees over 50, and all organisations operating in certain sectors such as financial services or the public sector, to have in place a designated person to receive protected disclosures on a confidential basis as well as procedure for them to follow up on the disclosure and where needed initiate an investigation.

Under the internal reporting channels required by Head 9, employees who make protected disclosures will have a right to be kept abreast of the actions that the employer takes resulting from their protected disclosures and the reasons involved. This will not be an automatic right for employees to have their disclosure investigated but the employer will have to at least acknowledge receipt of the protected disclosure within 7 days and must then provide feedback on the disclosure within 3 months.

Once this legislation is passed any public sector organisations and all private sector organisations with more than 249 employees will have to have these internal channels available to their employees immediately. There will be a delay for private sector organisations who employ between 50-249 people, which will have until 17 December 2023 before they are required to have their internal reporting channels set up.

Usefully for employers, Head 8 of the Bill states clearly that there are no obligations for employers to follow up on anonymous protected disclosures and Head 5 is clear that interpersonal grievances exclusively affecting the person making the complaint are not within the scope of the Act.

The Bill puts particular focus on confidentiality, Head 13 requires that any protected disclosure must be dealt with confidentially and the person making the disclosure must not be identified to anyone aside from those authorised to receive or follow up on the disclosure. The person who made the disclosure can only be identified to other people where it is entirely necessary to the investigation. Where it is necessary for the investigation that the person making the disclosure is identified, then they must be informed of this ahead of their identity being disclosed, unless this in itself would jeopardise the investigation. The Bill is clear that there will be penalties for those who breach this duty of confidentiality but these are not currently defined. 

In addition, the Bill refers to the rights for those employees accused of wrongdoing in a protected disclosure. Head 23 states that nothing in the Act will impact a person’s rights under the Charter of Fundamental Rights of the European Union. While this is not elaborated on in the current draft of the Bill, the Charter includes the right to privacy, the right to a fair trial, the presumption of innocence, the right to present a defence and the right to access their file.

Conclusion

It is not entirely clear when this Bill will be passed, while there is a transposition requirement date set out for December 2021, most EU countries have failed to publish draft legislation at this point.

However, it is clear that the Bill will significantly increase the scope and the rights associated with the Act. So much so, that while the requirement for internal reporting channels and policies will only be a requirement for medium and large sized employers and those in certain sectors, it will be prudent for all employers to have a policy in place to adequately deal with protected disclosures in a manner compliant with the Act and the Bill.

We will provide a further update when the full draft of the Bill is published.  

Link- https://www.gov.ie/en/publication/e20b61-protected-disclosures-act-guidance-for-public-bodies/#eu-whistleblowing-directive

Authors – David Murphy and Anne O’Connell

2nd June 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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