by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
In this article we revisit the impact of the EU Whistleblowing Directive in Ireland and its implications for Irish employers ahead of new legislation coming into effect in Ireland in the New Year.
What is the current position in relation to whistleblowing protection in Ireland?
Whistleblowing legislation has been in place in Ireland since 2014 as a result of the Protected Disclosures Act 2014 (the “PD Act“), a major development at the time, which introduced significant legal protection for employee whistleblowers and consequently new and serious obligations for employers. As a result of the EU Whistleblowing Directive, the 2014 Act has been significantly updated and enhanced through amending legislation which is due to become legally effective on 1 January 2023.
What impact will the updated whistleblowing legislation have in Ireland?
While many of the elements required by the Directive were already covered under Irish law, the Irish Government has introduced the Protected Disclosures (Amendment) Act 2022, which amends the existing 2014 PD Act.
The updated legislation includes a number of key enhancements to existing whistleblowing protections and measures, such as:
- 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 conflicts which concerns the worker exclusively;
- Considerably extending the definition of “penalisation” to include acts such as failing to convert fixed-term contracts, negative performance assessments and psychiatric or medical referrals;
- Extending the existing injunction style interim relief potentially available in dismissal cases to make it potentially available in other penalisation situations;
- Reversing the traditional burden of proof. Where a worker alleges penalisation, the new legislation shifts the burden to the employer to prove that the employer’ actions were based on duly justified grounds and not because the worker made a protected disclosure;
- Requiring that certain private sector employers must have whistleblowing procedures and internal channels on the following basis:
- Private entities with more than 250 employees – from 1 January 2023
- Private entities with between 50 – 249 employees – from 17 December 2023.
- (Currently all public sector organisations are already required to have a formal whistleblowing policy in place under the existing legislation):
- Imposing strict timeframes on employers for acknowledging, following up and providing feedback to whistleblowers;
- Establishing a Protected Disclosures Commissioner.
Will employers be required to process anonymous disclosures?
Employers will not be obliged to accept or follow-up on anonymous reports. However, an anonymous whistleblower will still be entitled to protections if their identity subsequently emerges.
What other things should employers in Ireland be thinking about?
The new legislation signals a significant change in approach to whistleblowing in Ireland.
Many employers now need to review existing policies or consider preparing new procedures. Training and awareness, especially for management, will also be key.
Already, there is a notable increase in whistleblowing related employee litigation.
By ensuring that effective internal whistleblowing channels and procedures are in place, organisations 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.