The EU Whistleblowing Directive

by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.

In a number of our client webinars over the last 12 months or so, we have alerted our clients to the EU Whistleblowing Directive (the “Directive“) and the changes this will bring to the Irish protected disclosures regime

The extent of existing protection afforded to whistleblowers across the EU varies considerably. While whistleblowing legislation has been in place in Ireland since 2014 as a result of the Protected Disclosures Act 2014, the Directive is being introduced as a harmonisation measure to set a minimum standard of protection for whistleblowers across all Member States.

The Directive provides that EU Member States (including Ireland) must take certain measures by 17 December 2021.

Implications for employers in Ireland

The introduction of the Protected Disclosures Act (“the PD Act“) in Ireland in 2014 was a major development at the time and introduced new and significant legal protection for employee whistleblowers and consequently new and serious obligations for employers. In fact, the extent of the existing protection afforded by the PD Act means that many of the elements required by the Directive are already covered under Irish law.

In light of the looming deadline for implementation of the Directive, the Irish Government has published a general scheme (essentially an early draft of a bill), the Protected Disclosures (Amendment) Bill 2021 (“the Bill”), which will amend the existing PD Act.

• Widening the scope of individuals who are afforded protection beyond employees to include volunteers, interns, job applicants, suppliers, shareholders and non-executive directors;
• Expanding the ambit of “relevant wrongdoings” for the purposes of whistleblowing by encompassing breaches of EU law in various prescribed areas including public procurement, financial services, product safety, transport safety, food safety, animal welfare, public health, consumer protection, privacy and protection of personal data – but, importantly, it excludes interpersonal grievances;
• Considerably extending the definition of “penalisation” to include acts such as a negative performance assessment and psychiatric or medical referrals;
• Extending the existing injunction style interim relief potentially available from the Circuit Court in dismissal cases to make it potentially available in other cases of penalisation under the Act in addition to dismissal.
• Requiring that certain private sector employers must have whistleblowing procedures and internal channels on the following basis (Currently all public sector organisations are already required to have a formal whistleblowing policy in place under the PD Act):
  • Private entities with more than 250 employees – from 17 Dec 2021
  • Private entities with between 50 – 249 employees – from 17 Dec 2023
  • Organisations with less than 50 employees may be required to comply following a risk assessment of the organisation’s activities and the ensuing level of risk.

It should be noted that it is currently proposed that employers will not be obliged to progress anonymous protected disclosures. However, an anonymous whistleblower will still be entitled to protections if their identity subsequently emerges.

• Establishing a Protected Disclosures Office within the Office of the Ombudsman;
• Introducing Legal Aid for whistleblowers seeking to bring employment-related claims; and
• Imposing strict timeframes on employers for acknowledging, following up and providing feedback to whistleblowers.

An associated Government press release indicated that the new legislation would put the burden of proof on the employer, thus reversing the traditional position. It indicated “it will be assumed that the alleged act of penalisation occurred because the worker made a protected disclosure unless their employer can prove otherwise.” This, if followed through, would be an extraordinary development and could create real difficulties for employers in employment litigation. However, some commentators have wondered whether this suggestion would actually find its way into the final version of the legislation.

For the moment, the general scheme of the Bill provides only a broad outline of the proposed legislation. We must await more advanced drafts before we know more and some of the above proposal could be altered.

What steps should employers in Ireland be taking?

Whatever its final form, the Bill is likely to signal a significant change in approach to whistleblowing in Ireland.

Employers need to review existing policies or consider preparing new procedures now. Training and awareness, especially for management is also key.

By ensuring that effective internal whistleblowing arrangements are in place, your organisation will have an opportunity to become aware of concerns at the earliest stages, helping to avoid or limit financial and reputational risks

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.