Elizabeth Ryan

The business law firm surveyed 230 HR professionals from the public and private sectors at a recent webinar on the Protected Disclosures (Amendment) Bill.

The bill, which is expected to be passed by the Oireachtas before the summer recess, sets out obligations for private sector employers to have a disclosure channel in place for people to report wrongdoings.

Elizabeth Ryan, partner at Mason Hayes & Curran, said: “The new regime is being driven by changes in EU legislation that attempt to harmonise protections for whistleblowers across all member states.

“Under the old regime, employers in the private sector were not obliged to have a policy or process in place, whereas employers in the public sector were.

“I think the disclosure channels, for workers to raise concerns internally, will be the area of greatest challenge for employers under the new legislation.

“If you have more than 250 employees, once the bill is enacted, you will have an obligation to have an internal disclosure channel policy in place very quickly, if not immediately. If you have fewer than 250 employees, you have a derogation until 2023.”

She added: “The channels need to operate in a secure manner, and all the GDPR obligations of the employer must be complied with. The protection of confidentiality and of the information being reported is paramount. The identity of the whistleblower – called a ‘reporting person’ under the bill – cannot be disclosed without his or her permission.

“Additional categories of people, like volunteers, trainees shareholders and job candidates, were not covered under the old regime but will be protected from penalisation under the new legislation.

“The definition of penalisation has also been extended to cover circumstances including withholding training opportunities, negative performance reviews or sending the employee for a medical or psychological assessment.”

Melanie Crowley, head of employment and benefits at Mason Hayes & Curran, said: “Not only must employers diligently follow up, but you must be able to demonstrate that you have diligently followed up. This might not always necessitate an investigation, but it is one of the steps that should be considered.

“Providing feedback on the actions that have been taken arising from the report, and any planned follow up, is also a requirement and there are clear and set timelines laid out for employers in the bill. The burden of proof has shifted to the employer, whereas under the current legislation the burden of proof is on the whistleblower.

“There is a lot of transparency and quite a bit of work involved for employers under the new regime, which really heralds a change of culture in how we deal with whistleblowing in Ireland.”