The Protected Disclosures (Amendment) Act 2022 (the Act), which transposes the EU Whistleblowing Directive into Irish law, has now been enacted. Given the deadline for transposing the EU Directive was December 2021, it is unlikely the Government will delay in commencing it. While the final text of the Act is very similar to the initial draft of the Bill (the Bill) which was published in February, there are some amendments to note. This Q&A sets out in detail some of the main differences between the Bill and the Act.

What Are The Main Differences Between The Bill And The Act?

The main changes that have been made to the Act during the legislative process is as follows:

1. the addition of transitional measures;
2. new rules on the provision of feedback; and
3. a change to how disclosures are to be reported externally.

What Are The New Transitional Measures?

A new Schedule 7 has been added that provides for transitional measures. These include the potential application of protection measures under the new regime in respect of:

1. protected disclosures made under the old regime, but where penalisation occurs after the commencement of the new regime, and
2. where penalisation occurs under the old regime but proceedings are brought after commencement of the new regime.

What Are The New Rules On Providing Feedback?

The Act outlines detailed procedures for reporting channels involving diligent follow-up and the provision of feedback to the reporting person within three months. The reporting person can also request in writing the provision of ongoing feedback. This feedback must be given at intervals of three months until the procedure relating to the report concerned is closed.

What Changes Were Made To External Reporting Channels?

The requirements for a disclosure to qualify as a ‘protected disclosure’ when reported externally underwent some amendment during the legislative process:

• The initial draft of the Bill outlined that individuals making a disclosure to a prescribed person would only qualify for protection if they reasonably believe that the information disclosed is “true”. The Bill has since been amended to revert to the position in the Protected Disclosures Act 2014 which provides that individuals making a disclosure to a prescribed person will qualify for protection if they reasonably believe that the information is “substantially true”;

• The requirement in the initial draft of the Bill that a worker reasonably believes the information is true for reporting to a relevant Minister has been removed; and

• The conditions for a public disclosure to qualify as a protected disclosure have been updated as follows:

In addition to the worker reasonably believing that the information is substantially true, the worker must:

1. have previously made a disclosure of substantially the same information to the employer, prescribed person or relevant Minister and no appropriate action was taken within the period required, or
2. reasonably believe that the wrongdoing may constitute an imminent or manifest danger to the public interest, or that if they were to report to a prescribed person or the relevant Minister there is a risk of penalisation or there is a low prospect of the wrongdoing being effectively addressed.

It will no longer be required that the worker does not make the public disclosure for personal gain and that it is reasonable to make it.

Will Further Guidance Be Issued?

The Act attempts to exclude interpersonal grievances and complaints which exclusively relate to an individual worker from being classified as a ‘protected disclosure.’

It is worth noting that when the legislation was being debated, the Minister of State at the Department of Public Expenditure and Reform indicated that the provisions in the legislation covering guidance will be utilised to issue comprehensive guidance on the relationship between protected disclosures and grievances. Such guidance could prove very useful to employers, so watch this space!

When Will The Act Be Commenced?

According to Government Minister Michael McGrath, it is expected that the Act will commence in stages beginning in Autumn 2022. The Government is seeking to strike a balance between implementing the protections of the legislation as soon as possible while also ensuring that sufficient notice is given to bodies regarding the legal obligation to establish reporting channels, prior to criminal penalties coming into effect. Full commencement will also depend on the setting up of the Office of the Protected Disclosures Commissioner, a key component of the Act.

What Does This Mean For Employers?

The Act is expected to be commenced very shortly, so the time is now for employers to ensure their policies and procedures are robust and up to date and that managerial staff are trained in order to ensure compliance with the new requirements and procedures.