On the 12 October 2022, the Minister for Public Expenditure and Reform, Michael McGrath, signed the Commencement Order for the Protected Disclosures Amendment Act (the “2022 Act”) which will take effect in its entirety from 1st January 2023. David McCarroll, Partner with RDJ’s Employment Team, takes an in depth look at the obligations now arising for employers and what preparations need to be made.
The Original 2014 Act
Back in 2014, following on from a range of national scandals and public enquiries, the government introduced a landmark piece of legislation in the form of the Protected Disclosures Act (the “2014 Act”). The underlying purpose of the 2014 Act was to protect “workers” who had made “protected disclosures” from acts of “penalisation” by their employer. The legal threshold for a worker to be able avail of these protections varies depending on whether the disclosure is made internally to their employer, to a prescribed external body, to a Minister, to a legal advisor or to another person.
The 2014 Act provided for a number of very significant protections for employees. Those have now been enhanced further by the new 2022 Act. The chief remedies available are as follows:
- A claim under the Unfair Dismissals Act (the “UD Act”) taken in the usual manner to the Workplace Relations Commission and on appeal to the Labour Court. The UD Act was duly amended by the 2014 Act so that a dismissal of an employee for having made a protected disclosure was now deemed to be an automatically unfair dismissal, and that cause of action is a “day one right”, i.e. open to an employee without the requirement for the employee to have 52 weeks’ service. In terms of remedies, an employer can be required to take a specified course of action. In addition, the standard maximum compensation order available under the UD Act, being compensation for financial losses up to the sum of 2 years’ remuneration, is increased to 5 years’ remuneration (with the mechanism to reduce same by up to 25% where investigation of the relevant wrongdoing concerned was not the sole or main motivation for a disclosure being made). Obviously, it is also the case that such claims are now undertaken in the context of an open, public hearing with the parties named in any determination.
Now, under the 2022 Act, the burden of proof for such cases shall be reversed and so, similar to an equality claim, it will be for the employer to demonstrate that the allegedly penalising acts or omissions were in fact based on duly justified grounds. Also, under the 2022 Act the 25% reduction of the maximum 5 year award can now also be applied where the worker has been found to knowingly report false information.
- An interim application under Schedule 1 of the 2014 Act, which is made by the employee to the Circuit Court and is akin to a form of low threshold injunction where the employee can seek to procure an order from the Circuit Court against their employer preventing/reversing their dismissal and keeping them on full pay until any claim under the UD Act is disposed of. Remember, that can be a very significant period of time given that such claims are by their nature complex and lengthy and could be the subject of a WRC hearing, a Labour Court appeal and even an appeal thereafter on a point of law.
Now, under the 2022 Act, a worker can also apply for interim relief from the Circuit Court in respect of not just dismissals but the much wider list of acts and omissions that are defined as penalisation (see below). That very significantly widens the immediate litigation threat for employers.
- A distinct cause of action in tort where a person has suffered detriment because they or another made a protected disclosure. That action is taken against the party who caused the detriment. The detriment includes certain set treatment such as coercion, intimidation, harassment, discrimination, adverse treatment, injury damage loss or threats of reprisal. Again, under the 2022 Act, the burden of proof for this type of case is also now reversed and it will be for the employer to demonstrate that the allegedly penalising acts or omissions were in fact based on duly justified grounds.
- In addition, there are protections around the provision of an immunity for a whistleblowers in civil proceedings (other than a defamation action).
The remedies provided by the 2014 Act, as now enhanced by the 2022 Act, have real legal “teeth” and the public nature of a whistleblowing related action can add to the concern employers have around such potential claims. The number of claims actually taken to the WRC itself has been relatively modest (being 60 - 80 cases in each of the last four reported years). However, the initial threat of such a claim is now by now means an uncommon occurrence within for example a contested redundancy or performance dismissal scenario. Whilst the 2014 Act only obliged public bodies (but not private enterprises) to establish and maintain a Protected Disclosures Procedure, many private sector employers did indeed put such a procedure in place and those policies will now need to all be updated to reflect changes that are set to take effect on the 1st January 2023.
Other Changes rising From the 2022 Act
Subsequent to the 2014 Act, Ireland has now had cause to update its framework of whistleblowing protections on foot of the transposing of an EU Directive (2019/1937) on the protection of persons who report breaches of European Union law. Hence the passing of the 2022 Act and its commencement on the 1st January 2023. The delay in commencement may have arisen to facilitate the establishment of a new body established under the 2022 Act called the Protected Disclosures Commissioner, who will be able to receive and redirect protected disclosures as appropriate.
There are a range of very significant changes to the 2014 Act introduced by the 2022 Act, which are summarised within the comparison table below:
It is important to note that the 2022 Act now also creates a range of criminal offences and penalties. They cover scenarios such as hindering the making of a protected disclosure as well as creating a criminal offence in respect of the very act of penalising a worker for making a protected disclosure, including for example the bringing of vexatious proceedings against the reporting worker. Depending on the particular offence, there are a range of very hefty potential fines, with the different maximum levels set depending on the offence committed at anything up to €75,000, €100,000 or in some cases €250,000. A conviction of a body corporate can even result in potential imprisonment for an offending director, manager, secretary or other officer for up to 12 months upon summary conviction or up to 2 years upon indictment. On the flip side, it shall also now be an offence for a worker to make a protected disclosure which contains information that they know to be false.
Given the extent of the changes that shall now take effect on the 1st January 2023, employers need to review their existing policies and procedures to ensure that any protected disclosures can be properly channelled and progressed in line with the new measures.
- For those with 250 employees or more (and those impacted already under the EU Directive), that review needs to be completed now to ensure compliance by the 1st January 2023.
- For those with less that 250 but more than 50 employees, that process needs to be completed by the 17th December 2023.
Consideration needs to be given to the appointment of designated impartial person(s) and those persons will need to be trained to enable them to undertake that role.
Wider awareness for line managers as to how to address, handle and channel disclosures needs to be considered.
Finally, much of the existing body of case law on protected disclosures concern matters that were alleged to have been disclosed verbally, rather than in written form, or indeed they have involved the Court being asked to determine a section of an email or meeting note and to retrospectively ascribe to it the status of a protected disclosure. As with any informally raised grievance or complaint, employers can significantly mitigate their risk of liability where management staff have been trained to recognise the risk and have properly extended the offer of the appropriate procedure to the worker concerned and the relevant policy can then be invoked.
This is a challenging and developing area of law for employers and it will certainly pay to be ready and able to address disclosures in a manner compliant with legal obligations, rather than face the very much expanded risk of litigation that will arise where a disclosure in wrongly handled and penalisation may be claimed.