20/09/2022

The Protected Disclosures (Amendment) Bill 2022

The Protected Disclosures (Amendment Bill was finally published on 9 February 2022.

The purpose of the Bill is to implement the EU Whistleblowing Directive and to amend the existing legislation on protected disclosures (the Protected Disclosures Act 2014.)

It is important to note that the final text of the Bill will not be known until it completes the legislative process. However the publication of the Bill does provide much of the detail of what will shortly become law.

Some of the key parts of the Bill are as follows:

• The Bill requires employers to establish internal reporting channels for workers who wish to report a breach. At this stage it will only apply to public bodies, employers in certain prescribed areas, and private employers who employ 250 or more employees. Private employers with between 50 and 249 employees will not be obliged to establish internal reporting procedures until 17 December 2023;

• These internal reporting procedures must be designed and operated in a way that ensures the confidentiality of the person making the disclosure and any third party mentioned in their report;

• Employees will be able to make a disclosure in writing, orally, or both;

• Unless a disclosure is minor enough not to warrant a formal process, the report must be acknowledged in writing within 7 days;

• The disclosure must be “diligently followed up” within 3 months;

• Feedback must be provided within 3 months (or 6 months in duly justified cases) to the worker who made the disclosure. The feedback must include the actions proposed or taken as follow-up and the grounds for this;

• Employers will be required to make and retain records of any protected disclosures. The Bill also requires employers to offer the reporting person the opportunity to check, rectify, and agree the record of their report where it has been made orally or at a meeting.

The statutory guidance for handling protected disclosures will be overhauled when the Bill is enacted and once this guidance is published employers should update their existing Whistleblowing Policy. The Bill also provides for the establishment of a new Office of the Protected Disclosures Commissioner.

In terms of claims and liabilities, the Bill proposes to reverse the burden of proof where an individual alleges they have been penalised for making a protected disclosure. In practice this will mean the employer must prove any act of penalisation did not occur because the person made a protected disclosure. Workers will also be able to seek interim relief for penalisation other than dismissal. Where any criminal offence is committed by an employer under the Bill it provides for very substantial fines and up to 2 years imprisonment. 

Case law

Ray Walsh v Econocom Digital Limited

This is a case where an employee was made redundant as a result of the closure of the sales operation of its Irish entity. Whilst the WRC found the Complainant’s role was redundant, he was awarded €120,000 in compensation as the manner in which the redundancy process was conducted rendered the dismissal unfair.

The complainant was invited to a meeting with no forewarning of the subject matter at which he was told his job was redundant.

The WRC described this as ‘disrespectful’ and focussed on the manner in which his employment was terminated. This included the employers failure to consult him about the proposed redundancy. The employer argued a consultation procedure would have been futile, but the WRC pointed out that they could not have known what alternatives may have emerged from a discussion with the Complainant and that, where no alternatives to redundancy can be identified, consultation should address the redundancy terms on offer.

The Respondent was found to have failed to follow a fair procedure and the dismissal therefore was unfair. This case demonstrates the need to consult with employees in all redundancy situations even if the business or a department is closing down entirely.

Ian Nagle v Premier Auto Parts Ltd

This is another recently reported WRC decision arising from a redundancy dismissal.  Again, there was no dispute that a genuine redundancy situation had arisen. The question was whether the Respondent had fairly applied reasonable and objective selection criteria.

The Complainant was selected on the sole criteria of his high salary. The WRC referred to an earlier Labour Court decision where the Court held “the duty of a Respondent in a valid redundancy situation may involve locating alternative work within the organisation even if this involves dismissing another employee with shorter service.”

In the present case the Director who carried out the redundancy process stated he did not consider it plausible to consider the redundancy of other employees. On this basis the WRC found no fair selection process had taken place and that the consultation with the Complainant “masked an already pre-determined decision.”

This case is a reminder that whilst it will not necessarily be unfair not to “bump” an employee in a redundancy process, bumping should be considered as part of a fair process.