Protected Disclosures (Amendment) Bill 2022 published by Minister Michael McGrath
On 9th February 2022, Minister for Public Expenditure and Reform, Mr Michael McGrath TD published the Protected Disclosures (Amendment) Bill 2022. The Bill is to provide for the transposition of the EU Whistleblowing Directive into Irish law, which aims to further enhance and strengthen the protections it provides.
The key provisions of the Bill are as follows:
1. The extension of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders, members of administrative, management or supervisory bodies and job applicants.
2. 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 17th 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. The Bill also provides that the Minister may, by way of order, extend the application of the Act to classes of employees with less than 50 employees.
3. 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 seven days,
· Diligently follow-up on the information contained in the protected disclosure,
· Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within three months following an initial assessment,
· Communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.
4. 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 Act of 2014,
· support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
· in cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.
5. The definition of Penalisation has been expanded to include any direct or indirect act or omission in a work context and additional examples are provided under the Bill. There has also been a shift in the burden of proof requirement where previously penalisation had to be established by the person alleging the wrongdoing, employers will now be charged with this requirement to prove that an alleged act of penalisation did not occur because an individual made a protected disclosure.
6. The Bill makes specific references to interpersonal grievances outlining that these are not to be considered a relevant wrongdoing and should be dealt with through internal procedures.
7. The Bill details that there is no obligation to accept and follow-up on anonymous reports, but an employer may choose to do so. It also clarifies that a worker who makes a disclosure by way of an
anonymous report, and who is subsequently identified and penalised for having made a protected disclosure, is entitled to the protections contained in the Act.
8. The bill will create a number of new criminal offences, including:
· Penalisation or threatening penalisation against a discloser,
· Failing to establish internal reporting channels for protected disclosures,
· Knowingly making a false disclosure; and
· Breaching the confidentiality provisions around the identity of a discloser.
The Government has indicated its intention to enact the legislation as soon as possible.
The Bill is currently making its way through the Dáil and is expected to become law in the coming months. While the final text of the Bill will not be known until it completes the legislative process, employers who already have protected disclosures procedures in place will need to review these in light of the requirements contained in the Bill. Employers without existing processes and who now fall within the legislative scope should prepare to put in place the formal reporting channels and procedures that are required under the Bill. We will continue to keep you updated on further developments