International Employment Lawyer
The Republic of Ireland became only the 11th member state to transpose the EU Whistleblowing Directive into national law, following the passage of the Protected Disclosures (Amendment) Act 2022 last month.
Natural justice
Although it is possible to preserve anonymity using anonymous reporting channels and electronic tools, employers must remember that whistleblowing complaints often include allegations against named individuals who are entitled to defend allegations of misconduct, says Niall Pelly, head of Littler’s Dublin Office.
“While it is important to ensure that the rights of whistleblowers are protected, this should not be at the expense of an individual’s right to preserve their good name and reputation,” he explains.
“The right of an individual to know the identity of their accuser, and to challenge any allegations made by that accuser, is generally recognised as part of an individual’s constitutional right to natural justice. In an Irish employment context, employees have a recognised entitlement to natural justice and fair procedures in disciplinary proceedings.”
Even as new regulations around the globe place greater emphasis on the protection of whistleblowers, Pelly highlights that an employer must ensure that the rights of both parties to a complaint are fully respected and vindicated.
“Walking this line can often be a difficult balancing act, particularly where serious allegations are raised, which will generally be the case in a whistleblowing context,” he says.
“In this regard, I believe the revised legislation strikes a fair balance by adopting the default position that the identity of a whistleblower should not be disclosed, but also making it clear that for the employer to do anything about it, the whistleblower will ultimately need to stand behind their allegation. This in turn ensures that an individual’s career and reputation is not put on the line based on an unverifiable, anonymous complaint.”
