Irish whistleblower law: EQS Group advocates for more comprehensive protection for whistleblowers

Irish whistleblower law: EQS Group advocates for more comprehensive protection for whistleblowers

• National whistleblower law entered into force on 21st July 2022
• New regulations broaden existing whistleblower regulations to cover breaches of EU law
• All private sector organisations with 50 or more employees are obliged to set up a whistleblowing system
• Breaching whistleblower confidentiality is now an offence in many cases, but Irelands new law does not require employers to provide an anonymous reporting option

London and Munich, 26th July 2022 The uncertainty for whistleblowers and institutions in Ireland has come to an end: the Government has now presented a new national whistleblower protection law, The Protected Disclosures (Amendment) Bill 2022, that transposes the EU Whistleblowing Directive.

Most importantly, this new law requires private companies with 50 or more employees to establish a whistleblowing system. It also requires employers to keep the whistleblowers identity confidential and creates a new offence for breach of this confidentiality.

EQS Group, market leader for whistleblower systems in Europe, welcomes this step - but advocates urgent revisions which would strengthen the law beyond the requirements of EU Directive 2019/1937 and provide full protections for whistleblowers.

Ireland is the 11th member state in the European Union to implement the EU Whistleblower Directive. There has been a delay in getting this legislation passed, with the initial deadline being December 2021.

While we are pleased that Ireland has finally transposed the EU Whistleblowing Directive, we are disappointed that the government has failed to go further and require companies to provide an option for whistleblowers to report anonymously. While the new Bill guarantees confidentiality for whistleblowers, time and again it has been shown that many whistleblowers prefer to report completely anonymously - our Whistleblowing Report 2021 found that half of all whistleblowers submitted their reports anonymously if the company offered this option. We therefore recommend urgent improvements to the law, says Achim Weick, founder and CEO of EQS Group.

Apart from exceptional circumstances, companies will now need to receive consent from whistleblowers before disclosing their identity. If companies breach this confidentiality duty, whistleblowers will have much freer rein to bring legal proceedings against them and will now not be required to prove loss.

Companies in the private sector must set up reporting channels - or risk penalties

Irish whistleblowers have previously been afforded protection under the Protected Disclosure Act 2014. They could make a report if they were classified as a worker - such as employee, trainee or contractor - who disclosed information in a particular way. Concerns could be reported to an employer or to an external person.

The Protected Disclosures (Amendment) Bill 2022 substantially extends the scope of protection and provides greater clarity for both whistleblowers and employers. All private sector organisations with 50 or more employees must establish formal channels and procedures for their employees to make protected disclosures. A derogation for the above requirement will be put in place until 17 December 2023 for organisations with between 50 and 249 employees. The scope of the law is extended to volunteers, unpaid trainees, board members, shareholders and job applicants. The process of establishing formal reporting channels in companies will be monitored and enforced by the Inspectorate of the Workplace Relations Commission.

In addition, further key details of the new legislation are as follows: 

• Protected disclosures will be expanded to include breaches of EU law, but importantly do not include interpersonal grievances or conflicts.
• Acknowledgement of the receipt of the protected disclosure must be given within 7 days
• Diligent follow-up must be conducted regarding the information disclosed
• Feedback on the actions taken must be provided to the whistleblower within 3 months and they may request ongoing feedback in writing. This feedback must be given at intervals of three months until the investigation is finalised.
• New offenses will be created for employers who fail to establish internal whistleblowing channels
• Penalising reporting persons, hindering a person from making a report or taking vexatious proceedings against whistleblowers will also be considered offences
• Definitions of penalisation are now expanded to include a negative performance assessment; failure to convert a temporary employment contract to a permanent one and a medical referral.
• Workers now have to pass a harder test for their public disclosures to be classified as protected disclosures, including having previously made the same report to the employer, prescribed person or relevant minister and seen no follow up.
• A new Office of the Protected Disclosures Commissioner will be established to support the new measures
• The Commissioner will take on responsibility for transmitting all protected disclosures sent to government ministers to the most appropriate authority

It is also noteworthy that the new Bill reverses the burden of proof for penalisation, meaning the employer will have to prove that any alleged penalisation was not a direct result of the employee making a complaint. 

To note, all public sector organisations, regardless of size were already required to have formal protected disclosure procedures in place under the 2014 act.

Whistleblowing Report 2021: Great need to catch up in Europe

The Whistleblowing Report 2021, an international study conducted by the University of Applied Sciences Graubünden in cooperation with EQS Group, shows that there is still a lot of catching up to do in Europe. In 2020, only one in 10 companies fully complied with the requirements of the EU Whistleblower Directive and almost half of the companies surveyed in Germany, France, the UK and Switzerland were not prepared at all. The importance of a functioning reporting system that effectively helps to identify wrongdoing and risks is shown by the fact that around one in three companies surveyed had been affected by illegal or unethical behaviour at least once and exposed to immense reputational risks as a result.

Digital whistleblowing systems are best practice for preserving anonymity and reliability

Digital whistleblowing systems have established themselves as best practice because only these fulfill all the requirements for secure, anonymous and GDPR-compliant communication.

This new law highlights that employers need to protect the identities of whistleblowers, or face prosecution if they fail to do this. Employers should keep this at the forefront of their minds when choosing their reporting system as digital systems offer a simple and effective solution for this, and even go a step further in providing whistleblowers with the option to report completely anonymously explains Andrew Breakwell, Head of Sales, UK/IE/NL for EQS Group who, together with his team, supports EQS Group customers in Ireland setting up whistleblower systems. These include Cairn Homes and Allied Irish Banks (AIB).

About EQS Group:

EQS Group (www.eqs.com) is a leading international provider of regulatory technology (RegTech) in the fields of corporate compliance, investor relations sustainability reporting. In working with EQS Group, thousands of companies worldwide inspire trust by fulfilling complex national and international disclosure obligations, minimising risks and communicating transparently with stakeholders.

EQS Groups products are pooled in the cloud-based software EQS COCKPIT. They ensure the professional control of compliance workflows in the fields of whistleblower protection and case management, policy management, business approvals, third party management, insider list management, disclosure obligations and sustainability reporting.

In addition, listed companies benefit from a global newswire, investor targeting and contact management, IR websites, digital reports and webcasts for efficient and secure investor communications.

EQS Group was founded by Achim Weick in 2000 in Munich, Germany. Today the group employs more than 600 professionals and has offices in the worlds key financial markets.

Press contact: Ulrike Dittmar, Marketing EQS Group, ulrike.dittmar@eqs.com