One disclosure even led to €3.7 million being returned to the exchequer! Whistleblowing isn’t going away, and with Ireland now boasting one of the world’s strongest whistleblower protection laws, employers must stay ahead.

Laura McKee, Knowledge Partner at Legal Island, and Sinead Morgan, Legal Director in DAC Beachcroft’s employment team unpack key cases, share legal insights, and explore practical strategies to foster a culture of trust while staying compliant.

What You’ll Learn:

• Identifying a protected disclosure
• Increased protection for whistleblowers under 2022 Act
• Mitigating risk in managing protected disclosures
• Anonymous disclosures
• What the data from the Office of Protected Disclosures Commissioner’s Annual Report means for your business
• Key takeaways from recent protected disclosure cases
• The difference between a protected disclosure and a grievance
• How to build a culture of transparency and prevent penalisation claims

Transcript:

Laura: Good morning, everyone, and my sincere apologies for our late start this morning. We were having some technical issues that were outside of our control, but hopefully all is well now. And thank you so much for your patience.

You're very welcome to today's webinar, which is on Managing Protected Disclosures in the Workplace. My name is Laura McKee, and I am a Knowledge Partner here at Legal-Island. And today we have our expert speaker who is Sinead Morgan. She is the Legal Director leading the DAC Beechcroft Dublin's employment team.

Morning, Sinead. You're very welcome.

Sinead: Good morning, Laura. And apologies. The technical issues were in fact on my end rather than Laura's end, so I will take full responsibility.

Laura: No worries. These things happen. I think we're well used to them at this stage in our post-COVID world. But thanks so much, Sinead. We're delighted to have you here.

So what are we talking about today? Well, in today's webinar, Sinead will be exploring how to identify protected disclosure, the increased protection for whistle-blowers under the 2022 Act, how to mitigate risk in managing protected disclosures. She'll be looking at anonymous disclosures and how to deal with those.

She'll also be exploring the data from the recent annual report of the Office of Protected Disclosures report. She'll also examine some of the recent case law around protected disclosures, and importantly the difference between protected disclosures and grievances. So it's a very important and timely webinar.

You may have seen in the report that in 2023, there were over 1,000 whistle-blowing reports made to public bodies, which is just a huge number, and even one of them costing €3.7 million to the Exchequer.

So as we know, whistleblowing is a topic that is just not going away for employers. And in Ireland, we do have one of the world's strongest whistleblowing protection laws, so it's really important that employers stay ahead of this.

We do have slides for the presentation, which you will get a copy of after today's webinar together with the recording. So you'll have access to all of that.

If you do have any questions throughout the session today, please do drop them into the Q&A box.

So just to tell you a little bit about Sinead before we get started, as I said earlier, she's a Legal Director leading the DAC Beechcroft Dublin's employment team. She advises on all aspects of employment law and industrial relations issues from recruitment of employees, to contract drafting, to termination of employment. She's also experienced in defending employers before the WRC, the Labour Court, the Circuit Court, and the High Court. Sinead also speaks regularly for Legal-Island and she tutors in employment law at the Law Society of Ireland. So you are in good hands today.

And I just want to say a quick thank you to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. And if you're interested in finding out how MCS can help you, head to mcsgroup.jobs.

Before we begin, we're going to do some quick polls. It's anonymous, so don't worry. You should shortly see on your screen a poll, and it would be interesting just to see some of your results of how you are handling protected disclosures in the workplace.

So the first question is "What is your biggest challenge when managing protected disclosures in your organisation?" Ensuring employees feel safe to speak up, distinguishing between a grievance and protected disclosure, handling investigations effectively, preventing and managing claims of penalisation, or keeping up the legal obligations and policy updates.

Results are coming in there, and it seems distinguishing between grievance and protected disclosure, a difficult one, coming in at 44%. Brilliant. So that seems to be nearly half of people are saying that that is a key issue.

So we might move on to the next poll. Thank you so much for sharing that information. The next question, which Gosia will put up on the screen shortly, is "Has your organisation delivered specific training on protected disclosures in the last 12 months?" So you may have a policy in place, but have you actually provided training? First is yes for all staff, yes but only for managers, no but we plan to, and no we have no plans to.

Very interesting to see that over half of attendees are saying no, and they have no plans to. So something maybe, Sinead, we will discuss today about whether training is needed for all staff.

Brilliant. So, look, we'll get straight into it now because we are running a little bit behind. Thank you so much, Sinead. I'm going to hand it over to you. And Gosia is going to share the slides on screen. Thank you.

Sinead: Perfect. And thanks so much for that kind introduction, Laura. It's wonderful to speak, again, with Legal-Island.

As Laura highlighted, protected disclosures are becoming much more of a topical key issue. We see them a lot in practice, and it is highlighted by the statistics.

So the first slide you'll see, and Laura has averred that already, there were 1,100 reports of wrongdoing to public sector bodies in 2023. And this report was the first annual report of the Protected Disclosure Commissioner.

I suppose that's the public sector space, and it's always interesting to see what's happening in the private sector space. We would tend to get those statistics from the WRC Annual Report.

The most recent one is 2023. And as you'll see there, there's been a 201% increase in 2023 in cases involving protected disclosures under protected disclosure legislation. And 301 complaints in 2023. It still doesn't make up a huge percentage of the complaints to the WRC, but you can see there has been a really substantive increase from 2021 to 2022 and, again, in 2023. Again, we're seeing that in practice.

And by way of background, I'll try and only touch on the legislation and try and make this as practical as possible. Initially, the legislation for protected disclosures came in 2014. So the Protected Disclosure Act 2014 came in, and we as practitioners expected that there would be a tsunami of claims under this legislation. And actually, very little happened for a number of years.

However, there has been an amendment act in 2022, the Protected Disclosures Amendment Act 2022. And since that has actually been enacted, we have actually seen a significant uplift in the number of protected disclosures claims in a number of ways.

So, initially, you might get a protected disclosure claim under the 2014 Act, but it would be an add-on claim. And by that, I mean it wouldn't be the key or the primary claim. There might be an unfair dismissal claim and this would be an additional claim.

However, what we're seeing more and more, as well as the increase in claims under the legislation due to the 2022 Act and the increased protection in that act, which we will discuss in a lot of detail in this session, we're seeing a lot more standalone cases before the WRC, which was not the case post the 2014 legislation.

And finally, where else do we see protected disclosures reported? Well, there is an option for whistle-blowers who have protection under the legislation to take injunctive relief to the Circuit Court.

Now, I would say, and we will mention a couple of cases later on, that anecdotally these are significantly on increase. But due to the nature and the risk associated with Circuit Court claims and the costs attached, a lot of these do appear to settle. So there's not a huge amount of reported cases, but anecdotally we know there's a lot happening in the background that settles. Next slide, please.

So I suppose in simple terms, what is a protected disclosure? Unfortunately, and you'll hate me saying this, it's all about the definitions in this legislation. They are really, really key because they set out, I suppose, how you establish was it protected disclosure and the specific requirements.

And so a protected disclosure is a disclosure of relevant information, and that is defined by the legislation, the 2014 Act, made by a worker . . . that's a worker, not an employee, and it's wider . . . which in the reasonable belief of the worker tends to show relevant wrongdoing. So all of those terms are defined in the 2014 Act and they're significantly expanded on in the 2022 Act.

But I think a key thing to remember here from the perspective of defending any claim that comes in, in relation to protected disclosure, is that there must be a link. So it's a "but for" test.

So if I want protection as a whistle-blower and I believe I have made a disclosure, I would say, "But for me making this disclosure, I would not have been disciplined", "I would not have been demoted", or, "X or Y penalisation occurred because I made this disclosure". So being able to link a disclosure you made to a later act by the employer is really, really key to a whistle-blower being able to attract protection.

And so when we investigate and we look back, or a claim comes in, it's about being able to establish whether a disclosure was made, whether it was a protected disclosure, and then whether there was a causal link to penalisation.

Next slide, please.

So I talked about the various different legislation, 2014 Act and 2022 Act, and without getting into too much detail, I'm just going to focus on the key pieces here and on what I discussed earlier, which was this additional protection.

In the first instance, and I pointed this out, it isn't just employees who get protection under the protected disclosure legislation. A worker gets protection, and a worker is defined by the 2014 Act.

What is a worker? Well, they're a full-time or a part-time or a temporary employee. They're a contractor or a consultant. They're agency staff, a former employee, an apprentice, or those on work experience. So really, actually quite broad. Even to start off, really quite broad.

But in a lot of these categories, you might anticipate a disclosure might be a protected disclosure. Perhaps not the contractors or consultants, and those are important to be aware of, but it's important to point out that this has been expanded even further by the 2022 Act. So we now have a whole new cohort of individuals who can gain protection as whistle-blowers under the legislation, subject to meeting the criteria.

They're shareholders, directors, members of an administrative management or supervisory body, volunteers, job applicants, or those involved in pre-contract negotiations.

And again, even quite seasoned HR practitioners mightn't be aware that some of those categories fall under the category of worker and could prospectively get protection under the Act. So it's about keeping aligned to those issues and those additional categories.

Next slide.

The next thing we'll discuss is relevant wrongdoing. So we have to prove we made a disclosure of a relevant wrongdoing. And so what's a relevant wrongdoing? Again, this was clearly set out in the 2014 Act really quite expansively. Although there'd been a lot of things in there that we would anticipate, it has been expanded on much, much further by the 2022 Act, which gives additional protection to this category of whistle-blowers.

So what's a relevant wrongdoing under the 2014 Act? Well, where an offence has been or is likely to be committed, where there's non-compliance with a legal obligation, a miscarriage of justice, danger to the health and safety of an individual, damage to the environment, an unlawful or improper use of funds, oppression, gross neglect, gross mismanagement of a public body, or concealment or destruction of information in relation to any of the above.

So that's really, as we can see, quite wide, although certain things like health and safety, miscarriage of justice, whether an offence has been carried out perhaps are things we would anticipate and we would clearly identify as a relevant wrongdoing.

What has been added by the 2022 Act? Well, the 2022 Act adds the occurrence or likely occurrence of a whole range of obligations under EU law.

So for example, EU law that affects the financial interests of the EU and relates to the internal market, EU competition, state aid rules, and internal market rules on corporate tax. And also, it references a whole other range without actually specifically referencing pieces of legislation or directives. The Act references broad categories that can be covered by EU legislation, which would still attract the category of relevant wrongdoing.

And this is a non-exhaustive list, I might add, because it's a hugely expansive list. It includes things such as public procurement, such as protection of personal data and privacy, compliance with product safety, radiation and nuclear safety. So hugely wide-ranging protections that exist in EU law.

Where I see the difficulty arising for HR practitioners in the expansion of this definition is the fact that you nearly need to be an EU expert to be able to identify that huge range of issues.

And so that whole piece of identifying when someone reports a relevant wrongdoing, I think, has been made tremendously difficult by this expansion. Next slide, please.

So penalisation. A key part of this, as I've mentioned, is the penalisation aspect of it. In other words, "But for me making this disclosure, which is of a relevant wrongdoing, I have been penalised. X or Y has happened to me. The business has done this to me".

So what's penalisation? Again, first, we'll look to the 2014 Act. And under the 2014 Act, there's a lot of what you would anticipate could be penalisation. So suspension, layoff, dismissal, demotion, loss of opportunity for promotion, transfer of duties, change of location, reduction in wages, imposition or administering of a reprimand or a disciplinary action, unfair treatment, coercion, discrimination, injury, damage, loss, threat of reprisal. I suppose that's within what we might deem to broadly be considered penalisation.

The definition, I think, of this expansion for HR practitioners is really the most difficult part of the expansion of protections under the 2022 Act, because not only is there a huge list of additional items but it's the nature of these items, some of which include what we would consider very normal day-to-day HR activities. And I'll highlight those ones as we go through.

So, for example, withholding of a promotion, withholding of training, ostracism, negative performance assessment or employment reference. For example, by bringing someone through a PIP process, an employee could argue that this was penalisation. So that's very tricky.

Failure to convert from a temporary to a permanent contract, failure to renew or early termination of a temporary employment contract, harm to include of the worker's reputation, being blacklisted within a sector, early termination or cancellation of a contract for goods and services, cancellation of a licence or permit. Obviously, some of those apply to people like contractors or consultants, etc. Finally, and I think this one is very tricky, medical referral or psychiatric referral.

Obviously, an employer has a duty of health and safety to their employees, so if somebody is on long-term sick leave, you might send them to Occupational Health, and now arguably that individual could say, "Well, I made a disclosure X number of months ago before I got so stressed out that I went on sick leave. Actually, you sending me to Occupational Health is now trying to force me out of the business and it's penalisation". So I think it makes doing day-to-day business for HR practitioners really quite tricky. Next slide, please.

This was raised already, and it's one of the key issues, and I see it in practice all the time, identifying a protected disclosure and identifying it early. And what is a grievance versus a protected disclosure?

So under the Protected Disclosures Act 2014, what was specifically excluded from relevant wrongdoings was non-compliance with a legal obligation where it rose from a worker's contract of employment.

What that means is, for example, if I'm a health and safety officer and my job is to report health and safety concerns in the workplace, if I then report a health and safety concern, it is actually part of my day-to-day job, so I cannot rely on that as being a protected disclosure. It scoped down what could be a protected disclosure within the 2014 Act.

Then the Baranya case came in in 2022, and this caused a huge deal of concern and confusion amongst HR practitioners and employment lawyers alike because I suppose at a high level it said, "Just because something is a grievance does not mean it cannot also be a protected disclosure".

And in this particular case, it said that there can be a grievance that may be personal to the employee, such as a complaint about the impact of a work practice on an individual employee's health and safety, but that doesn't mean that that couldn't be a protected disclosure.

So by way of example, if I work on a production line and I'm using a machine, that machine requires me to bend or take a specific action, I say, "This is causing me back pain", but equally it could be causing back pain to anyone who's working with that piece of equipment, that could prospectively be deemed to be a protected disclosure under the Baranya definition as it were. Next slide.

I suppose somewhat helpfully, the issue of interpersonal grievances was addressed in 2022 legislation, and they have carved out what is a grievance versus a protected disclosure to some degree. And I do think it is helpful.

So they specifically exclude an interpersonal grievance where it exclusively affects the worker making the complaint and they relate to interpersonal conflicts between them and another worker.

Essentially, that means if I raise an issue in relation to one of my co-workers which is exclusive to me, then that is an interpersonal grievance. Does this mean that it simply doesn't get addressed by the employer? No. It means that the employer goes, "Well, actually, this isn't a protected disclosure, but it is prospectively a grievance or it might be a dignity of work issue". If so, you address it through that policy.

But again, the obligations in relation to those policies would be very different in relation to now the mandatory obligations under protected disclosure legislation. So it's really important that we identify what this issue is and what policy we address it under as soon as possible so we take the appropriate steps and meet the minimum mandatory obligations.

Next slide, please.

Laura addressed this from the outset, and it's a question we get asked all the time. It's anonymous complaints. So if there's an anonymous complaint, do I need to address it? Again, helpfully, the 2022 Act has clarified this. They have said, "Look, the employer is not obliged to follow up on an anonymous disclosure, but they can do so if they feel that it is appropriate".

And so examples of anonymous disclosures that we might look at would be, for example, if there are financial irregularities. So we get sent financial documentation, and that financial documentation basically indicates financial irregularities in the business. Those documents are addressed to the business. They are perhaps signed by somebody. There are steps you can take.

You can look at those documents. Are they genuine documents? You can talk to the people who signed off on the documents. You can compare them against financial accounts, etc. So there are certain steps that you can, of course, take to try and address that as a protected disclosure.

However, if it is a case that I get sent an anonymous complaint saying that X person is behaving in Y way, giving me no details, no individuals who've been impacted, without their own name, it's going to be very difficult for me to carry out any kind of a comprehensive investigation into those kinds of allegations.

Does this, again, mean that I ignore this? Well, my instinct is although there isn't a key obligation to do this, the mandatory obligation is that you should try and take some steps to close off any kind of complaint that is raised in the workplace.

So if somebody is complaining about, for example, endemic bullying in the workplace, perhaps you don't go down the protected disclosure route. Perhaps you carry out some form of a health and safety audit and do a safety assessment and you see if there is any merit in this.

I think that to try and do that is helpful in the event that retrospectively somebody then comes back and says, "Actually, this was a protected disclosure. You did nothing". I think if you can take some steps, that is always helpful. Next slide.

So we go on, then, to the mandatory obligations, and I won't dwell on these too much. Mandatory obligations were introduced by 2022 legislation. They were introduced on a staggered basis. Historically, protected disclosures legislation only referenced public sector workplaces. Under 2022 legislation, it now is addressed to private sector employers, and there were categories and thresholds that had to be met for the obligations to be triggered.

Now the current threshold and the lowest threshold from 17 December 2023 is any workplace that's more than 50 employees, those mandatory obligations have been triggered.

 What are the obligations? Well, in simple terms, they have to have a channel to process protected disclosures. They have to appoint a designated impartial person who has to be properly trained. That person should acknowledge a protected disclosure within seven days, and then they should give feedback to the individuals who made the disclosure within three months, though that can be extended to six months for complex matters. They also do an initial assessment to say, "Is it a protected disclosure, or should it be referenced by one of the other policies?"

Now, there are specific thresholds as to the level of knowledge that an individual should have as to whether they disclose internally or externally. We've discussed the internal one, which is that you must have a reasonable belief of a relevant wrongdoing. There are higher thresholds for either disclosing to a prescribed person or to a third party, but I don't have time to . . . I've referenced them there. I don't have time to go into them in detail given the length of this seminar.  Next slide.

Sanctions. And again, this is one of the key things as practitioners that we need to know about. If there is alleged penalisation, what are the prospective sanctions? What route is the worker likely to go down to protect their rights?

So first, and the one I think we're most familiar with, are WRC claims. A worker can take a penalisation to the WRC under the legislation. It's very important to remember this is a day-one right, so there's no service required for them to be able to do this.

Many companies or employers are of the view that if you dismiss somebody with less than 12 months' service, there are very limited options for them to take a claim against you. And in general terms, that is somewhat true. However, there is a get-out-of-jai-free card for certain categories of employees or workers, and whistleblowing is one of them.

The second thing that's very important to remember is that the burden of proof is on the employer in these cases, not on the employee. So the behaviour is assumed to be automatically unfair until you prove otherwise. You have to say, "Actually, that behaviour was not penalisation, and it was objective. The objective reasons for me putting someone through a PIP was because their performance was poor", for example.

Thirdly, and again very important to remember, is that by way of sanction, awards of up to five years' remuneration can be made and/or a direction from the WRC. In our experience, that five-year threshold has not been met yet, but there have been awards at the level of two years and around that level. So it can be an expensive business.

Now, there can be reductions of up to 25% if the allegations being made are false or that the sole motivator was not the fact there was a relevant wrongdoing. So there has to be a certain amount of bona fide there in relation to awards.

The second thing to remember is that you might not be faced with a WRC claim. You could be faced with an application for injunctive relief for the Circuit Court.

These applications, we know anecdotally and I've experienced them myself, are often not reported and they get settled behind the scenes, so there's limited case law on them.

From the employee's perspective or the worker's perspective, they must make that application within 21 days. That's quite a tight time frame.

In our experience, there is a low threshold for granting injunctive relief, which is difficult for employers. And what happens if, for example, someone is saying, "You dismissed me, it's penalisation, and I'm seeking injunctive relief"? Well, if they are successful and they meet that threshold, it means that they will be kept essentially on full pay until the conclusion of the WRC case and any other appeal.

So that is a really significant, I suppose, award to make. Essentially, the status quo will be maintained until the WRC claim has been concluded.

So, typically, what we see with this is we see an application to the Circuit Court attaching a motion and affidavit, and attached to that affidavit will be a WRC complaint form. You have to go through that whole process if they are successful in getting the interim relief. And we'll reference some of those cases later.

It's also important to remember that historically, under the 2014 Act, you could seek injunctive relief, but it was only for a dismissal. And now, any of the items that we have mentioned under penalisation, to include a negative performance assessment or, for example, requiring someone to attend occupational health, any of those can form the basis of injunctive relief if the individual can prove that it is penalisation.

So that, I see, as a really ripe ground for development of new cases. We can see an increase in the number of applications being made. Look, there is a risk to the worker in taking these claims because, obviously, the costs follow the cause in the courts, and so whoever is successful pays both sides' costs. But equally, there is a significant risk for the employer in that if they can't defeat the application for an injunction.

I have referenced two other forms of sanction, but they are uncommon, which is an action in tort and prospective criminal offences or conviction of a body corporate. But they are much less common, so I am not going to dwell on those. Next slide, please.

So recent case law. I think you can never really understand an area until you actually start looking at the case law in that area. And so we are going to reference a couple of WRC cases and then a Circuit Court injunction.

The first case we are going to mention is a 2023 case. So it's the Ohana Day Care Limited case. And in essence, it was a WRC penalisation case. We had a care worker and they alleged they had made a protected disclosure in relation to the care worker ratio of work. And as soon as they did that, the employer's attitude changed. Suddenly, there was a sham investigation and they were forced to resign.

Now, they were successful in making their claim and in proving their case, and the award of €14,000 was made. In that case, they proved that but for them making this disclosure, they would not have been penalised by way of being brought through this investigation.

And it was accepted that they had a reasonable belief that a wrongdoing was occurring, and that they communicated that, and that there was this link between them communicating that and something happening that was to their detriment that fell within the definition of penalisation. Next slide, please.

So this is a much more recent case, and this is the Killarney Advertiser case. This was a 2024 case, very recent, and was a WRC penalisation case. And in this case, we had a receptionist, and she reported health and safety concerns about a customer and the customer's behaviour towards her to the health and safety officer.

At the time, she actually referenced it as a protected disclosure really clearly, and later she was dismissed for performance reasons. It was accepted in this case by the WRC that but for her reporting this concern, she would not have been dismissed.

And you see in that case an award of €40,000, which probably was close to the 2-year threshold what was awarded. So, again, it shows that these can be very expensive endeavours. Next slide, please.

So I know I have mentioned Circuit Court injunctive relief at length. And although the cases are on the increase in this area, this still remains one of the key cases. So this is the 2020 case of Clarke v CGI Food. So this is an application for a Circuit Court injunction. We had a financial controller and he alleged that he had made a protected disclosure. Shortly thereafter, he was brought through a performance review. The disclosure he made related to financial irregularities and health and safety concerns.

And ultimately, he was successful in meeting the threshold for injunctive relief. So he was successful and, therefore, the company had to pay his wages until the conclusion of his WRC case.

Really important to remember here, and it is one of the key challenges I will reference on the next slide, that protected disclosures don't have to be referenced as protected disclosures on the face of them. If I reference something that's a concern that fits within what is a relevant wrongdoing, that can be a protected disclosure.

Secondly, retrospective protected disclosures can be relied on. And what does that mean? That means that if I disclose something X number of months ago and then I believe I'm being penalised as a result of making that disclosure, albeit it was an amount of time ago, I can rely on it.

And the dicta in this case, I think, is really, really helpful because it basically says that only after the victimisation, dismissal, or other adverse consequence arrives, one has to retrospectively figure out what really happened and analyse it in statutory language.

What that means in layman's terms is sometimes something happens in the workplace and we feel like we're being penalised, and we actually have to reverse-engineer and figure out retrospectively why that happened. And often, given the vulnerable nature of whistle-blowers, they're given the opportunity to do that retrospectively. Next slide, please.

Again, this is just highlighting a very recent case, and it was quite exceptional. A judge directed immediate reinstatement of a group clinical director. He alleged that he was essentially dismissed and put on gardening leave after making a protected disclosure and was successful in meeting the burden of proof. Again, these don't get reported all the time. I think that one is only a number of weeks old, so I thought it was worth mentioning. Next slide, please.

Challenges. I know this is always people's favourite part of these seminars, because it's all well and good knowing the law, but it's about the practical implementation of it and mitigating against risk that we really . . . They're the key learnings in any of these sessions.

And what I would see from my practical experience and with my clients, the challenges they face are, first and foremost, the late identification of disclosures in circumstances where they can be oral, they don't have to be in writing, and they don't have to be identified as a protected disclosure. So they could be identified incorrectly as a grievance, not treated appropriately, and you mightn't meet the minimum obligations now under the 2022 Act, for example. There's no service required for WRC claims, so I think that's really challenging.

The expanded definition of penalisation, I see, is incredibly difficult for employers in circumstances where it includes really simple day-to-day HR activities.

And the low bar for injunctive relief in the Circuit Court, again, creates a difficulty because it makes it more likely that claims in that arena will be lodged.

If you think of it, if a worker takes a claim to the WRC, they can't recover their costs in the WRC. Although it's a much more risky endeavour to take a Circuit Court injunction, the rewards are much greater for the worker because if they are successful and they meet the bar, then they will be paid until the WRC claim concludes, and they also will get their costs for any injunction. Next slide.

You'll be delighted to know this is the last slide. So what are my recommendations in order to mitigate risk against protected disclosures and how you manage them? Well, I think they're really, really tricky. I think we're going to see a really significant uplift of them as time goes on.

First and foremost, even if you don't meet the threshold for the 2022 Act, I think it's really helpful to have a protected disclosure policy in. Essentially, it's a step guide for your managers or your HR practitioners or whoever is at the coalface to be able to take the appropriate steps. And if you meet the threshold, to do that within the required time limits.

 If you have a protected disclosure policy that's pre-2022, I would recommend you to take it out, dust it off, and update it in relation to the mandatory obligations that are now in place.

I think it's really important to communicate these policies to workers. It is a double-edged sword because I know employers don't want to encourage people reporting protected disclosures. But at the same time, how are you ever going to address them if they're not clearly identified on the face of them and they don't have to be by the worker?

Thirdly, if you meet the threshold, you should have a designated impartial person. They can be internal or external if you're a smaller organisation.

I think training of managers is always absolutely essential. They are often at the coalface of reports of any type of concern, and I think that they have to be able to know what a protected disclosure is to be able to flag it up the chain, whether that be to HR or to senior management.

And I would encourage, though it seems like a lot of work, physical note-taking of employee concerns just generally, because if this is something that somebody tries to shoehorn into being a protected disclosure retrospectively, it's really helpful to have a clear note to say, "Actually, this was a vague concern that was raised by this person at this time. I offered them the policy. They said they didn't want to use it", or whatever the response was.

So, look, it's a tricky area. It's growing in difficulty, I believe, as awareness does increase about it, but I hope that has been helpful and I'm happy to address any questions.

Laura: Super. Thanks so much, Sinead. I think we can all agree that that was really comprehensive. If you do have any questions, please go ahead and drop them into the question box now.

Sinead, I do have one here, and it's interesting. It refers to that retrospective piece. So the question is, "Is there a statute of limitation on matters reported? For example, we have a report from 30 years ago and records are not likely to exist". Have you ever come across . . .

Sinead: That's really an excellent question because, like most pieces of employment legislation, you're meant to take a claim within 6 months, which can be extended to 12 months for reasonable cause.

But what we often see in these cases is that somebody says, "Well, I made a protected disclosure in 2022, and I raised it again in 2023, and I raised it again in 2024". They try and create what we call a continuum, and they say, "The employer has been behaving badly for the duration. They ignored it. And then they behaved badly". So they link historical. And I think that is a tricky aspect of it.

I have had cases myself where they're outside that six-month limit, so trying to investigate them is really, really difficult. People tend to take a claim about something . . . they tend to say, "The penalisation happened now, but the disclosure was X amount of time ago". The penalisation has to be within the six months, but the disclosure can be any amount of time ago.

But the reality is how credible is it that somebody, if they were unhappy, made a disclosure 10 years ago that they're penalising you now? There usually has to be more recent disclosures or recent links to make that, because it's that causal link that's the really key part. You have to have your protected disclosure, but then you have to have your link to your penalisation, and that has to be within that required six-month period.

Laura: And there's another question on that. If the alleged offence is 20 years old, but only disclosed now, does the employer have an obligation then to investigate that?

Sinead: Is it still a current concern? Is it possible to investigate it? I would always say if there are concerns raised in the workplace . . . If this is something that happened 20 years ago that's no longer happening now, it may not be a concern.

But if you can close something like that off by saying, "Well, we looked at this. It's not possible to investigate it", or, "That was a practice we actually did", or, "A machine that was in the factory 20 years ago is no longer there, so this is no longer a concern", I think it's helpful if you can close it off in some way. But I am conscious that you're not mandated to keep records for that long.

Laura: Yes. That's a good point. Thank you very much. Another question. What do you think internal audit's role should be in protected disclosures? What their role should be? Have you come across that?

Sinead: I mean, usually, audit teams are pulled in from the business if there are difficulties on the revenue side, financial irregularities, whatever it might be, to sort out a problem. So might they have a role if . . . It depends if something is being raised at . . .

If somebody clearly identifies something and says, "It is a protected disclosure", you should be looking at your protected disclosure policy and saying, "What steps do we need to take?" You need to deal with that in and of itself.

And if you meet the threshold, that should be done by the designated impartial person, whether they be appointed internally or externally. So those are your obligations under protected disclosures.

Audit teams, I wouldn't see them specifically having a role under protected disclosures themselves, but if it is a case that someone hasn't reported something as a protected disclosure but they have disclosed something that is a concern to you, and you choose to investigate that separately and use that support of your audit team, you can do that.

I have had disclosures before where people didn't want to actually go and pursue any policy. So we took a health and safety route. We said, "Well, look, you've identified a health and safety concern and we are going to get our health and safety officer on that, and we're going to call . . ." That was to kind of close off the concern.

I wouldn't see them specifically having a role in protected disclosure themselves because that's a separate channel, although you may need different parts of the business to investigate depending on the nature of the relevant wrongdoing being disclosed.

Laura: Great. I think that's really clear. Thank you so much. I think that's all the questions.

We just have another slide. I want to tell you a little bit about a course that Legal-Island run on protected disclosures. So to help you navigate whistleblowing in your workplace, we do have a dedicated course on this topic. It is tailored to Irish law and it does cover the 2022 Act as well, and all of the expanded penalisation under that. It provides awareness training for all staff.

So if you're interested in finding out more, check out our website. It should be on the slide there, legal-island.ie/e-learning.

So that's all from us today. I just want to say thank you so much to Sinead for her very insightful and practical presentation. Thanks so much to Gosia behind the scenes for offering the tech support.

I do apologise again for the delay in starting the webinar today. Thank you so much for your patience. And thank you to our sponsors, MCS.

Thanks so much to all of you for attending today, and we will be in touch shortly with the resources. Enjoy your afternoon. Thank you.
 

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