Protected Disclosures – Recent Case Law and the New Whistleblower’s Directive

In December 2020, the High Court¹ heard an appeal from the Labour Court on whether the failure by an employer to act upon a protected disclosure did not amount to penalisation under the Protected Disclosures Act 2014 (the “2014 Act”).

The appellant in this case had made two disclosures against the Department and was not satisfied with how they handled the disclosures and the fact that he had received no feedback, update or confirmation of an outcome of his disclosure.

The appellant had made a complaint to the WRC that this failure to investigate in a timely manner amounted to penalisation under the 2014 Act.

• However, the appellant couldn’t point to any specific detriment or retaliation he had suffered apart from not being updated, therefore he was not “penalised” for the purpose of the 2014 Act.

Whilst, this decision serves to confirm that there is no obligation to keep a person making a protected disclosure “in the loop” under the current legislation, it provides food for thought in light of the impending deadline for the implementation of the new EU Whistleblowing Directive (the “New Directive”) by 17 December 2021.

What is changing under the New Directive?

The main changes under the New Directive:

• The scope will be widened to include private sector organisations if they have more than 50 employees, currently only public sector organisations are obliged to have a Protected Disclosures policy in place;
• The definition of “relevant wrongdoing” shall be broadened;
• The protection under the directive will encompasses more than just an employee making a report, going forward it shall include legal and natural persons, shareholders, volunteers and interns, and those who are not yet employed by the organisation if they became aware of the breach during the recruitment process;
• The New Directive will specify acts that may constitute penalisation such as negative performance appraisals, withholding training, failure to make an employee permanent where there was legitimate expectations, early termination or failure to renew fixed term contracts, blacklisting or early termination of contracts for goods or services or even referring the discloser for medical of psychiatric assessment;
• The New Directive provides that if you make a disclosure you will be entitled to receive acknowledgement within 7 days and also receive feedback on the actions taken in response to the disclosure within 3 months.
• Limited liability for those making a disclosure against defamation claims, copyright breaches or data protection breaches.

¹ Conway v The Department of Agriculture, Food and the Marine [2020] IEHC 665