New Whistleblowing Laws in Ireland 2022

New Whistleblowing Laws in Ireland 2022

Despite the Protected Disclosures Act 2014 being one of the strongest whistleblower pieces of legislation in Europe, it is to be strengthened further to give effect to the EU Whistleblowing Directive.

The Protected Disclosures (Amendment) Bill 2021 was published on 9th February 2022 and will extend the protections afforded by the 2014 Act in several key aspects:

  • The amended Act will place an obligation on all public sector organisations and all private sector employers with 50* or more employees to establish and maintain internal reporting channels and procedures for employees to make protected disclosures. Those channels and procedures will be subject to WRC inspections;
  • The Bill broadens the definition of ‘worker’ – i.e. the person who can make a protected disclosure to include almost everyone associated with an employer, including volunteers, shareholders and job applicants;
  • A designated person in every organisation must follow a strict timeline for acknowledging, providing feedback and dealing with complaints;
  • The Bill broadens the definition of a relevant wrongdoing, reverses the burden of proof in alleged penalisation claims, and widens the scope for employees to seek interim relief to forms of penalisation other than dismissal; and
  • There will now be criminal penalties for penalisation in certain cases, including breaching the duty of confidentiality as regards the identity of a reporting person.

Make no mistake – this is one of the most important and powerful pieces of employment legislation in the history of the State.

* NOTE: The amended laws will initially apply this spring to all public sector organisations and to all private sector organisations with 250 or more employees. Private sector organisations with 50 or more will need to comply from 17th December 2023, although the Bill allows the Minister to reduce the threshold below 50 for certain classes of employer. In addition, there is no threshold for entities in the area of financial services, products and markets and prevention of money laundering and terrorist financing, transport safety, and protection of the environment.

Key questions under the new legislation:

Q. In what way will existing whistleblowing policies have to change?

Q. Who (if anyone) is not covered by the law?

Q. In addition to almost EVERY health and safety complaint (save those that impact ‘exclusively’ on the individual), what else might constitute a protected disclosure, rather than your common or garden grievance? Getting it wrong could find you facing massive compensation claims and even a criminal conviction.

Q. How do you protect the whistleblower(s) and provide a (constitutional) right to a fair hearing for the alleged wrong-doer(s)?

Q. All employers covered by the new legislation must appoint a designated person who will receive and handle complaints – what is required in this pivotal role?

Q. How can employers and managers best protect themselves against allegations of penalisation that might lead to criminal conviction?

Why is this event important for YOU?

The amendments allow the WRC or Labour Court to award compensation of up to €15,000 for individuals such as job applicants who acquire information of wrong-doing during the recruitment process. That is, of course, in addition to existing penalties of up to 5x the annual salary for breaching the rights of employees.

The Bill proposes that interim relief can be obtained before the Circuit Court in all cases where a worker alleges penalisation, not just in circumstances where the worker has been dismissed e.g. to stop transfers, warnings and other sanctions below dismissal.

At present, the burden of proof in cases of penalisation under the 2014 Act rests with the person alleging wrongdoing. The new Act will reverse this burden of proof, meaning that penalisation would be presumed to have occurred because of or in retaliation for having made a protected disclosure, unless the employer could prove the act or omission was on duly justified grounds.

All employers need to be briefed fully on the amendments to avoid expensive claims and to deal with potential PR disasters.

After attending you will:

  • Have received expert advice and practical guidance.
  • Have received detailed notes and checklists for future reference.
  • Understand the law by applying it to practical scenarios.
  • Understand lessons from case law and what employers must do to combat risk.
  • Have a detailed understanding of the amendments, the key areas of difficulty and developments to watch out for.
  • Be able to advise your organisation on the best way forward to prepare to meet your requirements under the amended legislation.
  • Know what must be included in your organisation’s whistleblowing procedure or be able to adapt your organisation’s current whistleblowing procedure (if you have one) to meet your new obligations.

Course overview/outline programme

This event is split into two parts:

Day One (22 June) considers:

  • Understanding Statutory Requirements (Part 1): About the Protected Disclosures (Amendment) Act 2022 and the New Requirements
  • Understanding Statutory Requirements (Part 2): Creating a Supportive Culture for Whistleblowers – What this means for employers and their procedures
  • Understanding Statutory Requirements (Part 3): The Whistleblower is Always Right (Unless They’re Wrong) - reversal of the burden of proof in cases concerning penalisation.

Day Two (23 June) focusses on reinforcing the learning from day one via application of practical scenarios and checklists for the audience to analyse and discuss:

  • Practical Examples (1): Defining a Protected Disclosure – which of these scenarios requires a statutory response? How to tell, what to do and how to protect your organisation.
  • Practical Examples (2): Reporting Channel and Procedures – Recording disclosures and setting up investigations, providing feedback
  • Practical Examples (3): Round-Up, Top Tips, Standard Procedures and What to Do Next

Who is it for?

This event is a must-attend for:

  • Anyone with responsibility for auditing or compliance issues and particularly for anyone who may be a designated person responsible for handling whistleblowing complaints in the workplace;
  • HR professionals in all private and public sector organisations who may need to advise on or investigate employee complaints or allegations;
  • Anyone else with responsibility for employment policies, risk assessment and governance; and
  • Any solicitors, in-house lawyers or other representatives, who must advise on the law.

When & Where?

This event will take place online over between 9.30am and 1.00pm on both the 22 & 23 June on the NewRow platform.

Price...

Standard Rate: €315
Early Bird Rate: €275 (deadline 5pm on Friday 13 May 2022)
Save an additional €20 when you book and pay online.

Additional Training Resources: Whistleblowing Awareness eLearning Training Course

The Protected Disclosures Act 2014 is one of the strongest pieces of whistleblowing legislation in Europe. It is to be strengthened further to give effect to the EU Whistleblowing Directive. The Protected Disclosures (Amendment) Bill 2021 was published on 9th February 2022 and will extend whistleblowing laws to private sector employers, job applicants and volunteers, and reverse the burden of proof in penalisation claims. Employers must create and maintain internal reporting channels that will be subject to inspection by the WRC.

This newly updated course is designed to ensure your employees have not only an understanding of the importance of whistleblowing processes in the workplace but also the important protections that apply when they speak up against wrongdoing in the workplace.

Training all staff will help protect your organisation and maintain an open workplace, reduce the chances of breaking the law and avoid expensive claims and potential PR disasters.

Please complete your details in the section below to register your interest and we will be in touch with more details on the launch of this course or to discuss your training needs further, contact Debbie Wilson - debbie@legal-island.com.

Register Interest: https://forms.gle/XXfKbaiGeL4dSpYV8

Programme

Day 1: Understanding the Law and Consequences of a Breach

Time

Session

9.15

Welcome and Introduction – Christine Quinn, Legal Island.

Meet the speakers – Emmet Whelan, Partner, ByrneWallace LLP and Dr Lauren Kierans BL, University of Maynooth.

9.30

Understanding Statutory Requirements (Part 1): About the Protected Disclosures (Amendment) Act 2022 and the New Requirements:

  • Whistleblowing pre-2022 and now: a Comparative Table
  • Elements brought in by EU Directive
  • What must be included in an internal reporting channel and procedure?
  • Who is protected and who is not protected by the new law?
  • The role of person or department ‘designated’ to receive complaints
  • Deviation from Normal Procedures: Disclosures to prescribed persons and disclosures concerning security, defence, international relations and intelligence
  • The Role of the Protected Disclosures Office within the Office of the Ombudsman
  • Main areas of concern, pitfalls and costs: a summary

Q&A at 10.30

10.45

Comfort/Screen Break

11.00

Understanding Statutory Requirements (Part 2): Creating a Supportive Culture for Whistleblowers – What this means for employers and their procedures.

  • How do you protect the whistleblower(s) and provide a fair (constitutional) right to a fair hearing for the alleged wrong-doer(s)?
  • What does the law require in relation to protecting anonymous whistleblowers and the investigation of anonymous complaints?
  • How far may an employer go when providing any assurances regarding anonymity?
  • What are the potential penalties if assurances are broken?
  • What information may/may not be provided to the parties?
  • What does ‘protecting the identity of persons concerned’ actually mean in law and in practice?
  • What should a protected disclosure policy state in writing?
  • How far should you go in encouraging whistleblowers to come forward?

Q&A at 11.20

11.30

Comfort/Screen Break

11.40

Understanding Statutory Requirements (Part 3): The Whistleblower is Always Right (Unless They’re Wrong) - reversal of the burden of proof in cases concerning penalisation.

Going forward it will be assumed that any alleged penalisation will have occurred because of the making of a protected disclosure, unless the employer can prove otherwise i.e. provide an explanation not related to whistleblowing.

So…

  • What might constitute penalisation i.e. what does it look like?
  • What penalties might an employer face if you penalise a whistleblower or witness?
  • How should you record claims of penalisation?
  • What do you need to do to fairly investigate penalisation claims?
  • What protections can/should an employer offer?
  • What are the criminal offences and penalties under the new laws?
  • How do you defend/refute such claims i.e. what should you put in writing?
  • What can you do if you think the claim is malicious or false in some way?

Q&A at 12.10

12.20

Recap and Final Q&A

12.30

Close of Day 1

Day 2: Practical Applications and Problem-Solving

9.20

Welcome Back and Introduction to Day 2 – Scott Alexander, Legal Island.

Meet the Speakers: Dr Lauren Kierans BL, University of Maynooth, and Liam Ennis, Founder of The Debrief Group.

9.30

Practical Examples (1): Defining a Protected Disclosure – which of these scenarios requires a statutory response? How to tell, what to do and how to protect your organisation.

Baranya v Irish Meats Group Ltd [2021] IESC 77 and the Amendment Act have confirmed that almost all health and safety complaints are now protected disclosure complaints. But exactly what else is protected and would you know a protected disclosure from a ‘normal’ grievance if you were approached by an employee unsure of the law?

We set out three scenarios for the audience to vote on and discuss:

Scenario 1: Under which procedure would you treat this complaint (to be set out at the event) and why?

A. grievance

B. whistleblowing

C. it’s not a valid complaint, they’re just grumbling again

Scenario 2: We consider a separate complaint (to be set out at the event) – is it serious enough to be referred outside of your organisation? When might/must An Garda Síochána be involved? At what stage do you / should you involve external organisations and why? What should you do if the first you know of a whistleblowing claim comes via a prescribed person or the Protected Disclosures Office?

Scenario 3: You consider another complaint (to be set out at the event) to be malicious and/or frivolous. Which of the following actions (to be set out at the event) might/might not constitute penalisation and why?

Note: Discussion via polls and chat throughout

10.45

Comfort/Screen Break

11.00

Practical Examples (2): Reporting Channel and Procedures – Recording disclosures and setting up investigations, providing feedback

Let’s take Scenario 4 – and look at some templates that can assist you. Assuming you have identified a complaint as a valid protected disclosure, it needs to be recorded and dealt with. We work through practical issues, such as:

How should you record this complaint?

What headings must a complaint record contain?

Who should record and investigate this complaint?

Where should you record this complaint?

How can you keep the information confidential, provide fair process for the accused wrong-doer and ensure action?

Who needs to know about the details of the complaint?

What timescales are (in)appropriate?

How do you give feedback and protect employees and the organisation?

When should you report a finding of wrongdoing internally and externally?

What must you do if an investigation finds no unlawful wrong-doing occurred?

Note: Discussion via polls and chat throughout

11.45

Comfort/Screen Break

12.00

Practical Examples (3): Round-Up, Top Tips, Standard Procedures and What to Do Next

We provide attendees with a summary of key points, top tips or dos and don’ts, and some useful checklists to use in your organisation. Handouts include headings from a draft whistleblowing investigation report. Plus – your last chance to clarify any points with our panel of experts.

Note: Discussion via polls and chat throughout

12.30

Close

Testimonials

"The information provided was clear and concise. The Q&A part was useful as you received practical examples of the implementation/application of the policy."
Roisin Stewart, Director of Services, St. Bernard's Children's Services

"This was an excellent event of real relevance to me and my team."
Michael Downes, Head of Group Internal Audit, CIE

"I enjoyed the clarifications on the legislation and also the discussion through Q & A on live implementation issues related to the legislation."
Eithne O'Sullivan, Authorised Person Protected Disclosures, HSE

"Presentations were clear with the presenters identifying and addressing issues of concern from an early stage. The Case Study allowed a quick emersion into topic and the resultant issues."
Liam Walsh, Assistant Principal, The Department of Social Protection

"Very good training event. In addition to the very knowledgeable presenters who delivered the information in a very professional manner, the broad range of attendees and the questions raised allowed for a broader learning experience."
Nora O Farrell, Senior Executive Officer, Longford County Council

"Very informative event, and very well organised as usual! As I previously had very little knowledge of the Whistleblowing Process and Procedures, I found this seminar to be most informative. The speakers were experts in their field and very engaging in their delivery. I would recommend this seminar to others in the HR field. Another excellent seminar by Legal Island!"
Fionnuala Kilcoyne, Office & HR Manager, Digital Construction Technologies Group

"The content and delivery of this course was excellent."
Peter Kelly, Large Loss Recovery Specialist, AIG

Presenters


  • Emmet Whelan
    Emmet Whelan Partner
    ByrneWallace LLP

    Emmet Whelan is a Partner in the ByrneWallace LLP Employment team. With over ten years’ employment law experience, Emmet advises on all aspects of employment law and in particular specialises in contentious employment matters and employee benefits. Clients include senior executives and large public and private sector employers. 

  • Lauren Kierans
    Lauren Kierans Barrister

    Dr Lauren Kierans BL is a practising barrister and Lecturer in Law at Maynooth University where she lectures on whistleblowing law at undergraduate level, as well as a Professional Certificate.

    She was awarded her PhD on the Irish Protected Disclosures Act 2014 in June 2019.  She has published articles and book chapters on protected disclosures and co-authored the Annotated Statute on the Protected Disclosures Act 2014. She has also produced two country reports on protected disclosures and spoken on this topic at various conferences, CPD events, round-table panel discussions, and legislative briefings at both national and international level. Lauren was awarded the governmental project for the drafting of the protected disclosures procedures guidance for public bodies on behalf of the Minister for Public Expenditure and Reform. 

  • Liam Ennis
    Liam Ennis Founder & Director
    The Debrief Group

    Liam Ennis is a founder and director of The Debrief Group, an organisation focused on the delivery of professional, transparent investigations. Liam has over 30 years policing experience, investigating the most complex and serious crimes. His skills and expertise has been recognised and commended by National and International Law Enforcement Agencies, including the Federal Bureau of Investigation (FBI) Police Service of Northern Ireland (PSNI) and An Garda Siochana. Liam understands the real difficulties and fears victims and whistleblowers face when speaking out against wrongdoing.  He is passionate in ensuring those charges with investigating such wrongdoings have the necessary skills and processes in place to conduct impartial and professional investigations. He recognises the real difficulty faced by Organisations in dealing with this complex and difficult area of business. Liam developed the only recognised UK Whistleblowing Investigative Management training course. The course is an endorsed provision accredited by Training Qualifications UK.  

    Liam’s clients include, The UK Medicines and Healthcare products Regulatory Agency (MHRA), Transparency International Ireland and The Jamaican Major Organised Crime and Corruption Agency (MOCA).

Event details

Duration

2 Half Days; 22 & 23 June

Date

22 June 2022

Location

Online - Newrow

Price

Standard Rate: €315
Early Bird Rate: €275 (deadline 5pm on Friday 13 May 2022)
Save an additional €20 when you book and pay online.