Changes afoot in the area of Protected Disclosures
The recent enactment of the Protected Disclosures (Amendment) Bill will bring significant changes as to how how employers are to deal with the issue of whistleblowers within their businesses. It is expected that the Act will be enacted before the end of the summer recess in 2022.
The Act imposes an immediate obligation on employers who have employees of in excess of 250 employees to set up a disclosure channel i.e. a secure channel by which employees can make confidential whistleblowing complaints/disclosures.
In 2023 this requirement for disclosure channel will be introduced for employers with between 50 and 250 employees until the 17th of December 2023.
Employers will have an obligation to ensure compliance with GDPR and the burden of proof will rest with the employer to ensure that they have complied with their obligations under the Act.
The Bill provides that the Minister may, by order, reduce the threshold of 50 employees for specified classes of employers if the Minister deems it appropriate.
Where an employee makes a disclosure through a formal channel by way of a protected disclosure the employer will have an obligation to acknowledge such reporting by a designated impartial person within 7 days as well as diligent follow up of the reports received, the provision of feedback to the reporting person within 3 months and a communication of the final outcome of any investigations which have been carried out on foot of the report.
The Workplace Relations Commission is the body responsible for the monitoring and enforcement of employer’s obligations through its inspectors.
The Bill expands the category of personnel who can make a protected disclosure and will now include volunteers of an organisation, shareholders as well as persons involved in the administration, management or members of supervisory body of an entity as well as persons who may be involved in a recruitment process i.e. job applicants.
It is important to note that even if you have less than 50 employees i.e. you do not have to put in place a formal channel the protections which are afforded to employees under Section 6(1) apply to employees irrespective of the size of the organisation.
One very important element of the legislation is that it attempts to deal with the decision of the Supreme Court in Baranya v Rosderra Irish Meat [2021] IESC 77. In that case the Supreme Court held that a complaint of a failure to deal with a legal obligation that was personal for the employee could amount to a protected disclosure and sent the matter back to the Labour Court to determine whether the dismissal of the employee in question arose from the making of a protected disclosure.
In dealing with the determination of the Supreme Court, the Bill seeks to limit matters relating to personal grievances either with a fellow employee or with the company from ‘relevant wrongdoing’ i.e. such complaints will not now amount to protected disclosure.
While the legislation deals with the possible extension of protected disclosures to personal grievances and closes off that avenue it does not deal with the broader public interest issue. In the UK it is very clear that protected disclosures must have a public interest aspect but it does not appear as though the draft Bill deals with the public interest aspect in its current format.
The Bill provides for the setting up of a Protected Disclosures Commissioner to be established within the office of the Ombudsman to support the new legislation.
There is no doubt that the new proposed Bill enhances protections for employees in the following ways.
1. It rebalances the burden of proof in civil proceedings.
2. It allows for interim relief to relate to a wider range of alleged penalisation of an employee more than just dismissal and also provides for criminal penalties for penalisation.
3. The Bill makes it an offence to obstruct or attempt to obstruct an employee in making a report.
4. It makes an offence to penalise or threaten penalisation.
5. It makes it an offence to breach the duty of confidentiality in relation to the identity of reporting persons. It also makes it an offence to make a report containing any information that the reporting person knows to be false and it makes an offence for the employee to fail to establish, maintain or operate internal reporting channels and proceedings and also makes it an offence to bring vexatious proceedings against a reporting person.
What to do now?
All employers should have a whistleblowing policy and should also have a person appointed who is designated to receive protected disclosures and that this person has adequate training.
For any further information on this or any other employment related matter please do not hesitate to contact Brendan Dillon on 01 296 0666.
