Protected Disclosures Bill 2021 – Key information for Employers and Employees

On 12th May 2021, Government approval was given to the General Scheme of the Protected Disclosures (Amendment) Bill, 2021 (the Bill), and published by Minister for Public Expenditure and Reform, Michael McGrath TD. The intent of the Bill is to amend the Protected Disclosures Act, 2014 (the Act), to give effect to the 2019 EU Whistleblowing Directive. The Directive aims to harmonise protections for whistle-blowers who report breaches of EU laws and Members States must transpose it into national law by 17th December 2021.

WHAT IS A PROTECTED DISCLOSURE?

At present, for a disclosure to qualify for the protections under the Act, three elements must be present:

• A disclosure of information that, in the reasonable belief of the discloser, tends to show a relevant wrongdoing, which came to their attention in connection with their employment.
• The disclosure is made by a worker.
• The disclosure is made in the manner specified by the Act.

The Bill will expand the definition of “relevant wrongdoing” to include all matters falling within the scope of the Directive, including areas such as public health, consumer protection and product safety.

Further, the Bill will insert a provision to the effect that interpersonal grievances between workers will not be considered a relevant wrongdoing where the grievance can be addressed through other means by the employer.

WHO MAY RELY ON THE ACT?

A worker is given a broad definition under the Act including employees, contractors, consultants and trainees. It was previously concluded that other categories, such as volunteers, could not fall within the definition of worker as they do not have an employment relationship and their inclusion would open up the provisions of the Act to the general public.

However, the Bill aims to greatly expand the definition of worker, to include shareholders, volunteers and a person who obtains information of a relevant wrongdoing during a recruitment process.

An anonymous disclosure of a relevant wrongdoing will not qualify for the protections under the Act, however, where a worker making such a disclosure is subsequently identified, they will be afforded such protections.

The Workplace Relations Commission (WRC) is the appropriate forum, in the first instance, where a worker claims they have been penalised for the making of a protected disclosure. The Act currently prescribes compensation by reference to an employee’s remuneration, however, the Bill will introduce a maximum compensation of €13,000 for those workers not in receipt of remuneration.

OBLIGATIONS ON EMPLOYERS

The Scheme of the Bill envisages a host of obligations on employers, whether public or private, who are in receipt of a prospective protected disclosure. Employers will be obliged to establish and maintain procedures for the making of protected disclosures by their employees. The Bill will set out the mandatory requirements of such procedures including timelines for response and the designation of an impartial person to follow up on the protected disclosure. An employer will be required to acknowledge receipt within 7 days and the designated person must follow up diligently with the maker of the protected disclosure. The Bill will require feedback be provided to the maker of a protected disclosure within 3 months of acknowledgement.

These obligations will initially apply to employers with 250 or more employees, and from the 17th December 2023 to those with 50 or more employees.

HOW CAN AN EMPLOYER PROTECT THEMSELVES?

The Bill is still at the pre-legislative stage, with the general scheme providing an overview of what is to be expected. However, given that Member States are required to transpose the Directive by December 2021, the Bill might be expected to progress reasonably quickly through the legislative process.

Whilst the changes envisaged by the Bill are not currently law, employers should be aware of their existing obligations under the Act. Employers are advised to implement policies and procedures in respect of protected disclosures to reflect their current obligations, which may later be amended to take into account any legislative changes. If the Bill proceeds as anticipated, it will be crucial that employer’s policies are sufficiently robust enough to address those “workers” not in their actual employment as anticipated by the general scheme.

This article was written by Kevin Healy, Solicitor, CKT.