Ireland and the EU Whistleblowing Directive: What is it and why is it important?
For years, the European Union has had to deal with a patchwork framework of whistleblower protection laws within individual member states that varied tremendously in scope. The EU Whistleblowing Directive was adopted in December 2019 and it is designed to put an end to those uneven and confusing protection levels, moving the bloc to a universal protection standard.
The Directive required all private and public sector employers with 250 employees or more to implement a whistleblowing system by mid-December 2021 while smaller organisations with between 50 and 249 employees were given an extra two years to complete the process.
Although the Minister for Public Expenditure and Reform published the General Scheme of the Protected Disclosures (Amendment) Bill in May 2021, it soon became clear that Ireland would miss the original deadline. However, the process started to gather steam in early 2022 before passing all stages of the legislative process and being signed into law by the president.
The state of whistleblower protection in Ireland before the EU Directive
In Ireland, whistleblowing is more formally known as “making a protected disclosure”. People taking such a step have been afforded protection under the Protected Disclosure Act 2014 which has also been called “the whistleblower legislation”. Irish whistleblowers could make a complaint if they were classified as a worker who disclosed information in a particular way. It covered the following:
- Employees or former employees
- Trainees
- People working under a contract for services
- Agency workers
- Independent contractors
- People on work experience and members of the Gardaí (Irish police)
Information was considered relevant if it came to the whistleblower’s attention in connection with his or her work which resulted in a reasonable belief of wrongdoing. Cases of wrongdoing could occur inside or outside Ireland and were defined as:
- Commission of criminal offences
- Failure to comply with legal obligations
- Damaging the environment
- Endangering the health and safety of individuals
- Miscarriage of justice or misuse of public funding
- Oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body
- Concealment or destruction of information about any of the above wrongdoing
When it comes to anonymity, those receiving or dealing with protected disclosures could not reveal any information about the whistleblower, though there were exceptions. These could occur if the whistleblower’s identity was essential for the investigation to be effective or to prevent crimes to state security, public health or the environment.
Under the Protected Disclosure Act 2014, concerns could be reported to an employer or to an external person. Employees were afforded protection against forms of retaliation such as threatening behaviour or dismissal. In addition, the Act provided for immunity from most civil actions from damages, preventing the whistleblower from being successfully sued for making a protected disclosure.
When looking at the previous whistleblowing law in Ireland, it is important to mention that some sectors had their own regulations in place before the Protected Disclosures Act 2014 came into effect. Examples include the Health Act 2007 which concerned the disclosure of wrongdoing in healthcare, the Protections for Persons Reporting Child Abuse Act 1998 protecting those reporting the abuse of children and the Charities Act 2009 which took into account breaches of the legislation to the Charities Regulatory Authority.
Ireland’s road to transposition: a timeline
June 2020: Department of Public Expenditure and Reform initiates public consultation on the transposition of the EU Whistleblowing Directive
June 2020: Irish Government publishes a commitment to ensure the effectiveness of new whistleblowing legislation during the transposition
July 2020: A group of university academics called Whistleblowing Impact publish a policy paper on the transposition of the Directive offering recommendations
May 2021: Minister for Public Expenditure and Reform publishes General Scheme of the Protected Disclosures (Amendment) Bill which aims to transpose the Directive
December 2021: Garda Síochána Ombudsman Commission (GSOC) urges the Irish government to pass legislation giving better protection to whistleblowers
February 2022: Minister for Public Expenditure and Reform Michael McGrath TD publishes the Protected Disclosures (Amendment) Bill 2022 and it is debated in the Dáil (national assembly)
July 2022: President Michael D. Higgins signs the legislation into law, completing transposition of the Directive.
The new whistleblowing legislation in focus
As well as transposing the EU Whistleblowing Directive, the Protected Disclosures (Amendment) Bill 2022 substantially extends the scope of protection and provides greater clarity for both whistleblowers and employers. The process of establishing formal reporting channels at companies will be monitored and enforced by the Inspectorate of the Workplace Relations Commission. It is important to note that all public sector organisations, regardless of size, were already required to have formal protected disclosure procedures in place under the 2014 Act. Some of the key details of the new legislation are as follows:
- The personal scope of the Protected Disclosures Act is extended to volunteers, unpaid trainees, board members, shareholders and job applicants
- All private sector organisations with 50 or more employees must establish formal channels and procedures for their employees to make protected disclosures
- A derogation for the above requirement was put in place until 17 December 2023 for organisations with between 50 and 249 employees.
- Acknowledgement of the receipt of the protected disclosure must be given within 7 days
- Diligent follow-up must be conducted regarding the information disclosed
- Feedback on the actions taken must be provided to the whistleblower at 3 month intervals
- Unauthorised disclosure of the identity of a whistleblower will be a criminal offence
- New offenses will be created for employers who fail to establish internal whistleblowing channels
- Penalising reporting persons, hindering a person from making a report or taking vexatious proceedings against whistleblowers will also be considered offences
- A new Office of the Protected Disclosures Commissioner will be established to support the new measures
- The Commissioner will take on responsibility for transmitting all protected disclosures sent to government ministers to the most appropriate authority
In relation to broadening the scope of the existing law, the new legislation extends protection for board members, shareholders, volunteers, unpaid trainees and job applicants who make a protected disclosure. The burden of proof for penalisation is also reversed, meaning the employer will have to prove that any alleged penalisation was not a direct result of the employee making a complaint.
A new schedule 7 provides transitional measures where protection will apply if protected disclosures are made under the old regime after the commencement of the new legislation. The same will apply when penalisations occur under the old regime while proceedings commence once the new one is on place.
Shortcomings and criticism
Even though Minister McGrath stated that “the implementation of the EU Directive and the amendments in this Bill will further strengthen the protections for whistleblowers and maintain Ireland’s position as a leader in this area”, he has also criticised the new legislation, warning that the measures have not gone far enough.
The Irish Times reported details about his concerns, which he aired during the Dáil debate. Mr. McGrath acknowledged that there was disappointment that the Bill fails to take the status of existing protected disclosures into account that were made before the Directive was transposed.
Sinn Féin TD Mairéad Farrell also called attention to the high price whistleblowers pay for speaking out and acting in the public interest, both professionally and financially. She felt a financial cap on rewards should have been removed given that research has found that whistleblowers lose out on more than €40,000 over the course of their working life. The Bill provides that the maximum amount of compensation that the Workpace Relations Commission may award to a worker not in receipt of remuneration from their employer is €15,000 (those who are in receipt can receive a maximum award of 260 weeks’ remuneration).
Conclusion
Ireland was one of a handful of EU member states with protection laws in place before the EU Whistleblowing Directive. Passing the Protected Disclosures (Amendment) Bill has now significantly strengthened protection for Irish whistleblowers and it brings the country in line with the new European standard. Despite the Bill’s shortcomings and the missed initial deadline, McGrath nevertheless describes the new measures as “among the most far reaching and most significant pieces of legislation ever to be adopted by the EU”.
Watch the replay of our webinar ‘Protected Disclosures Act Amendment: Putting into Practice the New Landscape’ to learn more.
Guide to the Introduction of Whistleblowing Systems
How to successfully implement a whistleblowing system in your organisation.
