Minister McGrath publishes Protected Disclosures (Amendment) Bill

Scope of the legislation extended
Greater clarity for whistleblowers and employers
New Office of the Protected Disclosures Commissioner

The Minister for Public Expenditure and Reform Michael McGrath TD, has today (Wednesday the 9th of February), published the Protected Disclosures (Amendment) Bill 2022 which will enhance and strengthen the protections for whistleblowers in Ireland.

The Bill will transpose the EU Whistleblowing Directive and will extend the scope of the legislation in providing protections for volunteers, shareholders, board members and job applicants for the first time.

Private sector organisations with 50 or more employees will be required to establish formal channels and procedures for their employees to make protected disclosures, as is currently the case in the public sector. This will be monitored and enforced by the Inspectorate of the Workplace Relations Commission.

Employers and prescribed persons who receive protected disclosures will be required to acknowledge them and follow-up on the allegations made and give feedback to the reporting person within three months. This will give greater certainty to both employers and whistleblowers as to what will happen when a protected disclosure is made.

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. This will ensure that all protected disclosures will be dealt with appropriately. The Commissioner will also take on responsibility for transmitting all protected disclosures sent to Ministers of the Government to the most appropriate authority for assessment and thorough follow up.

Furthermore, in civil proceedings the burden of proof will be reversed so that it will fall to the employer to provide that any alleged act of penalisation did not occur because the person made a protected disclosure.

Announcing the publication of the Bill, the Minister said,

“I am delighted to be publishing this important piece of legislation. Ireland has had whitsleblower protection laws since 2014 and we have learned much since the Act came into operation. Ireland is one of a small number of EU countries to have had such a regime in place before the European Directive, and in many instances, the 2014 Act has afforded vital protection to whistleblowers.

"However, a number of high profile cases show that we can never be complacent about protecting those who are reporting wrongdoing by both public and private sector organisations. I believe it is important that we take this opportunity now to improve our legislative framework for dealing with Protected Disclosures.

"The implementation of the EU Directive and the amendments I am proposing in this Bill will further strengthen the protections for whistleblowers and maintain Ireland’s position as a leader in this area. I look forward now to progressing this legislation through the Oireachtas and working with colleagues there so we can get it enacted as soon as possible.”

Notes for Editors:

The Bill provides for the transposition into Irish law of Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law (“the Whistleblowing Directive”).

Ireland already has comprehensive whistleblower protection laws in place in the form of the Protected Disclosures Act 2014 . Transposition of the Whistleblowing Directive will, however, require amendments to the 2014 Act.

The key provisions of the Bill are as follows:

The extension of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders and job applicants.
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. 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.
Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation 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.

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

Receive and redirect to the most suitable authority, as appropriate, protected disclosures made to prescribed persons under section 7 of the 2014 Act and to Ministers under section 8 of the 2014 Act; and

In cases where there is no alternative suitable authority follow-up directly on disclosures referred to the office.

New offences will be created for employers who fail in their obligation to establish internal reporting channels and for persons who:

Penalise reporting persons;

Hinder or attempt to hinder a person from making a report; or

Take vexatious proceedings against reporting persons;

Unauthorised disclosure of the identity of a reporting person will also be a criminal offence.
The extension of the interim relief measures under the Act to include acts of penalisation other than dismissal.
Reversal of 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.
Enhanced data collection and publication provisions as regards the numbers of protected disclosures made.

ENDS