1. Introduction
Directive 2019/1937 on the protection of persons who report breaches of Union law (the Whistleblowing Directive) sets out a minimum harmonised regime for the protection of whistleblowers across the EU. Article 21 of the Directive sets out the substantive protections to which reporting persons are entitled.
This article addresses the Article 21 protections, the implementation of those protections in Irish law through the Protected Disclosures (Amendment) Act 2022, and the practical implications for both employers and workers.
2. Legislation and Case Law
The Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act 2022, transposes Directive 2019/1937 on the protection of persons who report breaches of Union law. Section 5 of the 2014 Act defines a protected disclosure as a disclosure of relevant information made by a worker in the manner specified in Sections 6 to 10. Section 5(3) sets out the relevant wrongdoings: that an offence has been, is being, or is likely to be committed; that a person has failed, is failing, or is likely to fail to comply with any legal obligation; that a miscarriage of justice has occurred, is occurring, or is likely to occur; that the health or safety of any individual has been, is being, or is likely to be endangered; that the environment has been, is being, or is likely to be damaged; that an unlawful or otherwise improper use of funds or resources of a public body has occurred, is occurring, or is likely to occur; that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; that a breach has occurred, is occurring, or is likely to occur; or that information tending to show any matter falling within any of the preceding paragraphs has been, is being, or is likely to be concealed or destroyed.
Article 21(1) of the Directive provides that Member States shall take the necessary measures to ensure that reporting persons are protected against retaliation. Article 21(2) provides that persons who report breaches in accordance with the Directive shall not be considered to have breached any restriction on disclosure of information.
Article 21(5) reverses the burden of proof in proceedings concerning detriment suffered by the reporting person. Where the reporting person establishes that they made a report and suffered a detriment, it shall be presumed that the detriment was made in retaliation for the report. The respondent must prove that the detriment was based on duly justified grounds.
Article 21(7) provides that reporting persons shall not incur liability of any kind as a result of reports or public disclosures under the Directive, provided that they had reasonable grounds to believe that the reporting or public disclosure was necessary for revealing a breach.
The 2022 Act gives effect to these protections by amending Sections 12 and 13 of the 2014 Act to expand the categories of penalisation, to reverse the burden of proof, and to provide for interim relief in the Circuit Court.
3. Decision
WRC and Labour Court decisions in the post-2022 period have begun to apply the reversed burden of proof in Section 12 complaints. The complainant must establish the fact of the protected disclosure and the fact of the detriment; the burden then shifts to the employer to prove that the detriment was on grounds other than the disclosure.
The reversal of the burden of proof is a significant procedural protection. In practice, it requires the employer to articulate and document the legitimate reasons for any adverse treatment of a worker who has made a protected disclosure. Where the employer cannot do so, the inference that the detriment was retaliatory will be drawn.
Interim relief under Section 13 of the 2014 Act, available in the Circuit Court, allows for the maintenance of the worker’s position pending the substantive hearing of an unfair dismissal complaint. The interim relief jurisdiction is increasingly used in cases of dismissal alleged to be on protected disclosure grounds.
The Directive also extends protection to facilitators, third parties connected with the reporting person, and legal entities owned by the reporting person. These extensions broaden the scope of liability for employers.
4. Takeaway
For employers, the reversed burden of proof under Article 21(5) and the corresponding Irish provisions requires careful documentation of any adverse treatment of a worker who has made a protected disclosure. The employer must be able to demonstrate, by reference to contemporaneous records, that the treatment was on grounds other than the disclosure.
Where an employer is contemplating action in respect of a worker who has previously made a protected disclosure, advice should be taken on the application of the reversed burden of proof and on the likely evidential requirements.
For workers, the reversed burden of proof and the availability of interim relief are significant procedural advantages. Practitioners advising workers in protected disclosure cases should consider both at the outset of the matter.
The Directive’s protection of facilitators and connected third parties is a useful but underutilised protection. Practitioners should identify all potentially affected persons and consider the application of the protections to each.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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