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Whistleblowing bill ‘change of culture’ on way – MHC

Lawyers at Mason Hayes & Curran (MHC) have said that a new bill aimed at strengthening protection for whistleblowers represents a “change of culture” for employers.

They were speaking at a webinar on the Protected Disclosures (Amendment) Bill this week (1 June).

The head of the firm’s employment-law practice, Melanie Crowley, and partner Elizabeth Ryan said that the draft bill had been driven by an EU directive.

They added that the deadline for transposing this into Irish law had passed in November, so the Government was under pressure to pass the legislation.

‘Channels’ for reporting

Ryan said that one of the main changes from the existing 2014 legislation involved an EU attempt to set up a common minimum protection for people reporting breaches of EU law in areas such as procurement or GDPR.

The other big change, she said, was that private-sector employers now had to set up a ‘channel’, through which people could report what the bill sets out as ‘relevant wrongdoing’.

The MHC lawyers pointed out that, while public-sector organisations would need to update their policies, private-sector employers were starting from scratch.

Those with 250 or more employees may have some time to put their policies in place, the lawyers said, but they would have to do this very quickly. Smaller organisations have a derogation until 2023.

Obligation on employers

Ryan stressed that the bill was “quite prescriptive” on what channels set up by employers should look like.

They must operate in a secure manner, with confidentiality protections built in.

The bill also contains obligation on employers to “diligently follow up” on complaints. Ryan said that this imposed “a proactive obligation” on employers, and they must demonstrate that they have followed up on any complaint.

Previously, she said, there had been no obligation on an employer to give feedback on what had happened after the protected disclosure.

“Now an employer must tell a reporting person what they have done,” she stated.

Penalisation

On timelines, the MHC lawyers said that disclosures must be acknowledged within seven days, with feedback not later than three months afterwards.

They added that the range of people protected would be expanded to include categories such as volunteers, shareholders, candidates.

Ryan also pointed to a significant expansion in the range of actions that could be defined as penalisation of a reporting person. These could now include the withholding a training opportunity, a negative performance review, or sending an employee for a medical or psychological assessment.

She said the burden of proof had now shifted to the employer, to prove that the action taken was not taken because the person took a protected disclosure. In the current legislation, the burden of proof is on the reporting person.

A survey of 230 HR professionals carried out at the seminar found that two-thirds of respondents had taken no steps to put a disclosure channel in place ahead of the new legislation.

More than a third of organisations, however, had had experiences of whistleblowing in the past five years.