EU Whistleblowing Update – January 2023
This first EU Whistleblower Directive webinar of 2023 featured NAVEX whistleblowing expert Jan Stappers and Susan Battye, Partner at Walkers (Ireland) LLP. The session focused on the latest developments in whistleblowing, key steps organizations should take to ensure effective whistleblowing practices are in place, and updates specific to the Irish transposition of the Directive.
By December 17, 2021, EU Member States were required to transpose the EU Whistleblower Protection Directive into their national law. Now, over one year past the deadline, there are still several countries within the EU that still need to transpose the Directive into their national whistleblowing laws.
At the time of writing, these include Austria, the Czech Republic, Estonia, Germany, Hungary, Italy, Luxembourg, Poland, Slovakia and Spain.
In Ireland, national whistleblowing regulations were amended at the end of December 2022. While Ireland’s whistleblowing regulations were fairly developed compared to some EU countries, these new amendments built on the existing legislation confirmed in 2014 – namely, the Protected Disclosures Act. The newly-updated Protected Disclosures (Amendment) Act 2022 commenced in January 2023, which added the requirements outlined in the EU Whistleblowing Directive.
With these changes, public sector employers with 250+ staff and employers subject to EU laws regardless of headcount are now in the scope of the Directive. In December 2023, other employers from 50-249 staff will also be in the scope of the new requirements. This is a significant change, but it’s also based on the existing legal framework for whistleblower protections in Ireland.
Historically, Ireland provides comprehensive information about data protection. An Office of Protected Disclosures opened on January 3, 2023; though this is still in its early stages of development, it does have a website containing resources, tools and access to links to support and advise workers. One item anticipated to be instructive in future developments is new statutory guidance, which are expected to be clarified later in Q1. This will give further information on the practical implementation of whistleblower protections in Ireland.
There were several pressing questions raised during the webinar:
Are grievances considered reportable whistleblowing issues?
The Protected Disclosures (Amendment) Act 2022 isn’t completely clear on how grievances are consistently categorized. When this question comes up about whether a grievance is definitively reportable as a whistleblowing issue under protected disclosure, the approach in Ireland is to assess on a case-by-case basis. It is correct that if the report exclusively affects the reporting person, then it is just a grievance. However, if the report in any way relates to other people in a work-related context, it enters a crossover area.
For example, there may be a scenario where an employee raises a complaint about a particular management style, causing them anxiety. In this situation, the designated person handling the report might follow up to advise the employee to raise a grievance or make a complaint under the employer’s dignity at work policy in line with employment rights in Ireland instead. However, given how narrow the exception is, the same complaint addressing the issue in a slightly different way – for example, if the behavior in an open area had caused stress and anxiety for several employees – then it no longer exclusively affects the reporter as an individual. In this scenario, the designated person should treat the report as a protected disclosure under the legislation.
Overall, rather than simply outlining what does and does not fit under a protected disclosure, employers should use this legislation as an opportunity to be fully transparent with employees about what each of their organizational policies does – as well as what policies are appropriate to different types of complaints. By doing this, there can be a deeper transformation of management where are more solutions available for workers to be aware of, those employees are likely to have more trust in the organization, and there will be a lower risk of being penalized. If a designated person is in any doubt as to whether a report is a protected disclosure, it’s generally safer to err on the side of caution and assume it does qualify.
Does the manager of the reporting channels need to be located within the same country?
The Irish legislation for whistleblowing protections doesn’t explicitly outline this as a requirement. Employers must provide reporting channels at a local level, whether internal or provided through a third party, such as NAVEX, but the designated person receiving and investigating the reports can be based somewhere other than Ireland. The only specification is being competent and authorized by the Ireland-based employer to receive the reports.
Can not having an independent third-party process lead to poorer whistleblower protections?
It can – but it depends on the circumstances. Whether the designated person handling the reports is internal or external, the organization has a responsibility to make sure that person is properly qualified and trained in handling whistleblowing issues. They must understand the organization’s structure, know how to limit the number of people involved in investigations, and know where inquiries and investigations should be appropriately sent and resolved.
It’s very difficult for employers to prove retaliation has not occurred unless they can objectively show it was impossible to have known a person made a report. To limit the risk of exposing the whistleblower’s identity, organizations must consider how much limiting the involvement of other people relies on inter-organizational knowledge, which a third party may not have.
On the other hand, an external designated person or provider may be more objective than someone based within the organization. Additionally, smaller organizations without the resources to execute these complex processes 100% correctly may be safer by outsourcing this function to an expert service provider. Further to the point above, having a designated person not based in Ireland may also help the organization retain true objectivity about the disclosure, as they need to be connected to co-workers and the day-to-day inner workings of the organization.
Maintaining confidentiality wherever possible should be a priority for the organization, whoever the designated person is or wherever they are based. Above all, it is always the organization’s responsibility to ensure the procedures are clear and accessible to all workers.
Watch the full webinar on-demand for further discussion on Irish whistleblowing legislation, including more audience questions discussed by Jan and Susan, including:
- Recommendations for private companies around written vs. oral reporting channels
- Whether entities registered to Ireland without a local headcount are affected by the legislation
- If there is legislation requiring employers to act on anonymous reporting within or outside new updates