On 12 May 2021, the Minister for Public Expenditure and Reform published the General Scheme of the Protected Disclosures (Amendment) Bill (the General Scheme). The General Scheme provides a broad outline of the proposed contents of the Bill which will transpose the EU Whistleblowing Directive into Irish law, amending and updating the Protected Disclosures Act 2014 and perhaps also the whistleblowing provisions of the Central Bank (Supervision and Enforcement) Act 2013. The deadline for transposition is 17 December 2021.
Though Ireland already has one of the strongest regimes of whistleblower protection in the EU, there are nonetheless some significant changes on the horizon. This is particularly important for public bodies, not least because many of them can receive protected disclosures not only from their workforce in their capacity as employers, but also from the public in their capacity as “prescribed bodies” or regulators. We set out below the key changes and implications for public sector organisations.
Who will be covered?
The definition of “workers” will be expanded to include an individual who is a member of an organisation’s administration or management (including a non-executive member), a shareholder, volunteer, unpaid trainee or job candidate. The definition of “employee” will be expanded to include all of these, with the exception of a shareholder. This is a material broadening of the sphere of individuals who can make protected disclosures.
Compensation for employees who have been penalised for whistleblowing is currently calculated by reference to their remuneration. This poses a problem for some of these new categories of whistleblower, who may not receive remuneration. The General Scheme recognises this by proposing that persons who are not in receipt of remuneration may be awarded up to €13,000 if penalised for whistleblowing. They will have access to the Workplace Relations Commission (and Labour Court on appeal) for redress.
What wrongdoings will be covered?
The General Scheme proposes an amendment to the definition of “relevant wrongdoing”. These are the types of wrongdoing that a person may whistleblow about and obtain immunity for doing so. The General Scheme provides for the inclusion of breaches of EU law that are within the scope of the Whistleblowing Directive, such as in the areas of public procurement, product safety and compliance and public health. It is debatable whether some or all of these matters are already covered by the existing definition of “relevant wrongdoing”. However, the General Scheme provides some useful clarity in that regard.
Importantly, for all employers, both public and private, grievances about interpersonal conflicts between the reporting person and another worker which could be channelled through another HR procedure will be expressly excluded from the definition of relevant wrongdoing. This is a helpful addition, which may bring further clarity for employers in categorising a report as either a protected disclosure or a grievance.
Claims in respect of penalisation
Penalisation is currently widely defined as any act or omission that affects a worker to their detriment. The definition includes examples of conduct amounting to penalisation, such as unfair treatment or the imposition of a disciplinary sanction.
The General Scheme envisages additional new examples being added to this list, such as a negative performance assessments; failure to convert a temporary employment contract into a permanent one; and psychiatric or medical referrals. Again, it is debatable whether these matters are already covered by the current definition of “penalisation”. Either way, employers will need to ensure any such measures taken in respect of a whistleblower are entirely unrelated to their making of a protected disclosure.
Complainant employees will also be able to seek interim relief, i.e. an injunction from the Circuit Court, in respect of all forms of penalisation. Currently, interim relief is available only in the context of alleged dismissal for having made a protected disclosure. This expansion will be a significant development, not least because such applications for relief must be brought within 21 days of the penalisation, whereas a WRC complaint takes significantly longer; complaints must usually be filed within six months, with the hearing not taking place until some months after that.
While not referenced in the General Scheme itself, it is noteworthy that the Minister, in his press release indicated that the legislation will reverse the burden of proof. This means that it will be presumed that the alleged act of penalisation occurred because the worker made a protected disclosure, unless the employer can prove otherwise. This would be a significant development, though it remains to be seen what shape it will take when the detail of the draft Bill is published.
Anonymous disclosures
Importantly, the General Scheme provides that there is no obligation to accept and follow up on anonymous disclosures. However, if an anonymous whistleblower’s identity subsequently becomes known, they will be entitled to protection and immunity in the same way as any other whistleblower.
The absence of any legal requirement to follow up on anonymous whistleblowing reports could provide a false sense of security to organisations which receive them. The mere fact that there is no legal requirement to follow up does not mean there is no reputational exposure for not doing so. In our experience, if an anonymous whistleblowing report is sufficiently serious and capable of verification, then organisations which fail to investigate may later regret that decision if the matter becomes public.
Protecting the identity of the whistleblower and the person concerned
Under the General Scheme, the person to whom a protected disclosure is made or referred must not disclose any information that might identify the whistleblower except to individuals who are authorised to receive or follow-up on the disclosure. This is very similar to, and represents only a minor modification of, the existing requirement to keep a whistleblower’s identity confidential, subject to a number of narrow exemptions.
However, the General Scheme also provides that the same protection will apply to a “person concerned”, i.e. a person who is referred to in a protected disclosure as being someone involved in or associated with the wrongdoing. This is a very significant change. Organisations dealing with protected disclosures already find it challenging to keep the whistleblower’s identity confidential. Also keeping the identity of the ‘accused’ confidential will, in practice, be very challenging.
Internal reporting channels to public bodies as employers
Under the existing legislation, all public bodies must have procedures in place for the making of protected disclosures by their workers, past and present. Public bodies are required to have regard to guidance issued by the Minister for Public Expenditure and Reform in respect of these procedures.[1] However, at present there is no strict legal requirement to comply with or adhere to the Minister’s guidance which, in any event, affords public bodies a considerable measure of flexibility and discretion as regards what their internal procedures entail.
By contrast, the General Scheme contains a number of new, prescriptive provisions regarding internal reporting channels and procedures for the making of protected disclosures, which will be mandatory for all public sector organisations to implement (as well as for large portions of the private sector, based principally on size thresholds).
The step plan below provides an outline of the new requirements.
Internal reporting channels may be operated by a person or department designated for that purpose or provided externally by a third party. It will be imperative that the persons tasked with operating the procedure are in a position to perform their functions competently and therefore receive appropriate training.
As recommended under existing guidance, the channels and procedures must enable a protected disclosure to be made in writing, orally, or both. Oral reporting should be possible by telephone or through a voice messaging system and, upon request by the whistleblower, by means of a physical meeting within a reasonable timeframe. In addition, where a protected disclosure is made orally, the whistleblower must be given the opportunity to check, rectify and agree the minutes recording their protected disclosure by signing them. This is a sensible provision which should help to avoid disputes about what was or was not reported further down the line.
While some elements of the above may already be present in the existing policies and procedures which public bodies are obliged to have in place, the new provisions are considerably more prescriptive than the current regime and few, if any, organisations are likely to meet all of the requirements. Therefore all public bodies will need to review and update their existing policies and procedures to ensure compliance.
Public bodies should also be aware that the existing guidance published by the Minister will be repealed when the new provisions come into effect. The General Scheme gives the Minister power to issue new, broader guidance and it is likely that, once issued, this updated guidance will assist public bodies in complying with their new obligations.
External reporting channels to public bodies as “prescribed persons”
Currently, individuals making a disclosure to a prescribed person[2] (i.e. a public body in its capacity as regulator with responsibility for a particular area) only qualify for protection under the protected disclosures regime if they reasonably believe the contents of their disclosure to be “substantially true“. Under the new regime, the test will be changed to a reasonable belief that the information and allegations are “true“. Arguably, this is a slightly higher threshold to meet.
More significantly, the provisions of the General Scheme will oblige any public body that is a prescribed person to meet a number of requirements, including those set out below. There is no equivalent provision under the existing law. As above, while many prescribed bodies may, in practice, already be compliant with some of these new measures, it will now be mandatory to comply with all of them:
Though the General Scheme does impose a timeframe within which prescribed persons must follow-up on protected disclosures they receive, it also preserves some level of flexibility for prescribed persons in circumstances where they receive considerable volumes of protected disclosures. If necessary, prescribed persons may deal with disclosures of serious wrongdoing as a matter of priority, without prejudice to the prescribed timeframe. Disclosures may be made in writing or orally.
Establishment of a Protected Disclosures Office
When the new regime comes into effect, a new dedicated, independent Protected Disclosures Office will be established within the Office of the Ombudsman to act as a prescribed person of last resort to address situations where there are gaps in the provision of a prescribed person with responsibility for a wrongdoing or where assistance is required in directing a disclosure to an appropriate prescribed person. This will form a new channel via which prescribed persons can received protected disclosures. Within 7 days of receipt of a protected disclosure, the Protected Disclosures Office will be obliged to identify a suitable authority to follow-up on the report and to transmit the disclosure to that authority. If no suitable authority can be identified, the Protected Disclosures Office must follow-up on the report itself.
Penalties
The General Scheme provides for the imposition of new penalties for (i) hindering or attempting to hinder a worker in making a protected disclosure; (ii) penalising a worker; (iii) bringing vexatious proceedings against a worker for having made a protected disclosure; or (iv) breaching the duty of confidentiality to protect the identity of the whistleblower or the “person concerned”. The level of the penalties is still to be decided in consultation with the Office of the Attorney General. However, the EU Whistleblowing Directive prescribes that they must be “effective, proportionate and dissuasive”, which is likely to mean the new regime will have more teeth than its predecessor.
Conclusion
In short, the key change for public bodies will be an obligation to have more detailed, advanced processes for managing whistleblowing complaints, both in their capacity as employer and as prescribed person / regulator, which will include certain strict requirements. Given the proximity of these proposed changes coming into effect, public bodies should start preparing now so that the new whistleblowing culture envisaged by the General Scheme is embedded by the time the new laws take effect.
Kenan Furlong, Partner, Disputes & Investigations at A&L Goodbody LLP | kfurlong@algoodbody.com
Triona Sugrue, Knowledge Lawyer, Employment at A&L Goodbody LLP | tsugrue@algoodbody.com
Clara Gleeson, Solicitor, Disputes & Investigations at A&L Goodbody LLP | cgleeson@algoodbody.com
[1] The applicable guidance can be found at: https://www.gov.ie/en/publication/e20b61-protected-disclosures-act-guidance-for-public-bodies/
[2] The Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 prescribes the prescribed persons; such as the Data Protection Commission and the Workplace Relations Commission.