Protected Disclosures (Amendment) Bill 2021 – What’s New, What have Organisations to do, by When?

The Government published the General Scheme of the Protected Disclosures (Amendment) Bill 2021 in July.

The Bill aims to transpose into Irish law the EU Whistleblowing Directive 2019 which seeks to harmonise whistleblowing standards and protection in Europe. 

Since 2014, all public sector organisations, regardless of size, were required to have formal protected disclosures procedures in place under the Protected Disclosures Act 2014.

With the EU Whistleblowing Directive, there is now an obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. 

This must be put in place by 17th December 2021 for organisations of 250 employees or more, and by 17th December 2023 for organisations with between 50 and 249 employees. 

The new EU Whistleblowing Directive and the new Bill will further enhance the whistleblowers legislation and practices in Ireland.

What are some of the key new updates contained in the Bill?

Personal Scope

The extension of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders, and job applicants.

Acknowledge, Follow-Up and Feedback

Employers and prescribed persons designated to receive protected disclosures under the Act will be obliged to:

  • Acknowledge receipt of the protected disclosure within 7 days;
  • Follow-up diligently on the information contained in the protected disclosure; and
  • Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months.

Protected Disclosures Office

A Protected Disclosures Office will be established within the Office of the Ombudsman, which will:

  • Receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the 2014 Act;
  • Support Ministers who receive protected disclosures under section 8 of the 2014 Act by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
  • In cases where there is no alternative suitable authority follow-up directly on disclosures referred to the office.

Burden of Proof

There is a reversal of the burden of proof in cases concerning penalisation of whistleblowers at the WRC and the courts. This means that it will be assumed that the alleged penalisation has occurred because of the worker making a protected disclosure and it will be the responsibility of the employer to prove otherwise i.e. the burden of proof will be on the employer.

Relevant Wrongdoing

“Relevant wrongdoing” is being widened to include breaches of EU law in certain areas such as financial services, product safety, food safety and public health. 

Personal Grievances

Personal and interpersonal grievances are specifically excluded, and these should be raised through the grievance or respect and dignity at work procedure.

Penalisation

Penalisation is being expanded to include acts such as a negative performance assessment or employment reference and a psychiatric or medical referral.

Anonymous Disclosures

There will be no requirement for employers to progress anonymous protected disclosures. 

Next Steps / Deadlines

The EU Whistleblowers Directive and the transposition of it into Irish law will require organisations to update their existing policies and procedures and, for those private sector organisations with 250 or more employees that now are covered under the law,  to create new protected disclosures policies and procedures and channels for reporting, assessing, investigating, giving feedback etc. by 17th December 2021.

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