Whistleblowing & Protected Disclosures: Important Update.

The Department of Public Expenditure and Reform ("the Department") recently published a report on its statutory review of the Protected Disclosures Act 2014, as provided by section 2 of the 2014 Act. A copy of the report can be viewed here.

ByrneWallace assisted the Department with the Public Consultation Paper published last year providing an overview of the Act, setting out key issues for consultation and inviting submissions from interested parties.

The report provides a very significant review of the 2014 Act and contains useful information for anyone interested in the area, for example:

• Section 3 deals with recent developments in other European countries and how they compare with the Irish approach;
• Section 4.1 provides statistics on disclosures received by public bodies;
• Section 4.3 provides statistics on complaints received by the WRC ("Workplace Relations Commission");
• Section 4.4 discusses notable determinations of the WRC, Labour Court and Circuit Court; and
• Section 5 discusses the key thematic issues raised in submissions from interested parties. A number of issues that come up regularly in practice are discussed, such as the difference between personal grievances and protected disclosures, confidentiality issues, the breadth of the categories of wrongdoing including the health and safety category, interaction between the 2014 Act and sectoral protections and the definition of a worker.

Section 6 of the report concludes that amendment of the 2014 Act is not recommended at this juncture, with the exception of the amendment introduced in June this year by the European Union (Protection of Trade Secrets) Regulations 2018, transposing the EU Trade Secrets Directive. Regulation 7 amends the 2014 Act to provide that where the disclosure made concerns the unlawful acquisition, use or disclosure of a trade secret as defined in the Directive the worker must have acted for the purpose of protecting the general public interest to be protected by the 2014 Act. A link to the Regulations can be viewed here.

The report also suggests a number of other changes by way of statutory instruments: for example, enlarging the list of prescribed persons and providing guidance to improve the consistency of reporting by public bodies.

The report also notes that amendment to the 2014 Act is likely to be required in due course to transpose an EU Directive on whistleblowing, once the negotiation process has been completed. A link to the proposal for the EU Directive can be viewed here.

Finally, the report notes that the report of the Charleton Tribunal (when it issues) may also have implications for, and lead to amendment of, the 2014 Act.

For further information, please contact Emmet Whelan or your usual contact in the ByrneWallace Employment Law team.