Irish whistleblower safety is to be strengthened

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The Protected Disclosures (Amendment) Bill 2021 (41 pages / 572KB PDF) will amend the Protected Disclosures Act 2014 in order to bring the European Whistleblowing Directive into effect by the end of 2021. The government has approved the general system of law and the laws will be implemented in the coming months.

In summary, the Protected Disclosure Act offers protection for certain persons who make a protected disclosure in relation to a relevant misconduct. The draft law provides for this protection to be extended in a number of ways.

The draft law extends the definition of “employee” – the person who can make a protected disclosure – to shareholders, volunteers, unpaid interns, a member of the administrative, management or supervisory body including non-executive members and persons who obtain information about a relevant misconduct during a pre-contractual procedure or a recruitment procedure.

It requires all employers with 50 or more employees, including private sector organizations, to establish and maintain internal channels and procedures for employees to make protected disclosures. However, this does not apply to organizations with 50 to 249 employees until December 17, 2023.

Companies in the areas of financial services, money laundering and terrorist financing prevention, traffic safety and environmental protection must meet the requirements regardless of their size. Internal channels can be operated by a person or department or an external third party.

The bill also extends the definition of relevant misconduct to violations in the areas of internal market, competition law and state aid, corporate tax law, public procurement, financial services, road safety, protection and welfare, risks to public health and consumer protection, and privacy and protection of personal data .

Protection against retaliation for protected disclosure has been extended to board members, volunteers and unpaid interns, as well as those who obtain information about relevant misconduct during a recruitment or other pre-contractual process.

Unpaid persons have access to a legal remedy before the Labor Relations Commission or the Labor Court, up to a maximum compensation of € 13,000.

All forms of punishment will potentially be subject to interim injunctions. This can include withholding training, negative performance reviews or references, and blacklisting. Currently, the injunction only applies in connection with an alleged rejection due to protected disclosure.

Organizations receiving proprietary disclosures must acknowledge receipt within seven days and carefully follow up on the report, unless the prescribed person, after reviewing the matter, decides that the reported misconduct is minor or that the disclosure does not contain meaningful information compared to an earlier report where the relevant procedures were completed.

While the Protected Disclosures Act does not specify the amount of feedback that needs to be given to the person making a Protected Disclosure, the proposed changes would be a requirement for Feedback to the whistleblower within a reasonable period of no more than three months from the confirmation of receipt. If the whistleblower has not received any feedback, the feedback must be made within three months of the expiry of the seven-day period after the notification for the internal report.

The draft law defines “feedback” as information about the planned or taken follow-up and the reasons for such follow-up. The person providing the feedback needs to be able to follow up.

However, the draft law does not currently provide for an obligation to accept and track anonymous disclosures.

Labor law expert Jason McMenamin of Pinsent Masons, the law firm behind Out-Law, said:

“We advise employers to monitor this development carefully and to keep an eye on their current position. Employers who already have internal whistleblowing procedures in place may need to make changes to their internal procedures, for example in the light of the European Directive and the implementation of national legislation.

“Employers who do not have a whistleblowing system or internal channels and procedures but are within the scope of the policy will need to put such systems in place depending on how and when the policy is implemented in Ireland,” said McMenamin.

The bill is currently at an early stage and will be subject to further negotiation and possible changes.