Introduction

Whistleblowing involves publicly exposing private wrongdoings, often preventing harm or loss to the public, a crucial element in governance. This is more commonly called making a protected disclosure.

Examples of wrongdoings include failing to comply with legal obligations, endangering the health and safety of individuals,engaging in criminal offences, damaging the environment, misusing funds and concealing or destroying information about any wrongdoings.

The primary piece of legislation that exists in the area of whistleblowing is the Protected Disclosures Act 2014 as amended by the Protected Disclosures (Amendment) Act 2022.

What is a protected disclosure?

A protected disclosure is made when a worker discloses any relevant information that came to their attention in connection with their work and they believe is wrong. Employees can report wrongdoing to their employer or to a third-party. If an employee makes a protected disclosure they should not be treated differently or unfairly and their job should not be at risk because of this.

Relevant information is defined in the act as:

• In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
• It came to the attention of the worker in a work-related context.

It is important that the disclosure is made:

• In good faith
• In the reasonable belief of the individual making the disclosure that it tends to show malpractice, impropriety, or any breach of company policy and that they make the disclosure to an appropriate person. It is important to note that no protection from internal disciplinary procedures is offered to those who choose not to use the procedure or who breach company policy.

The Protected Disclosures Act applies to persons in the public, private and not-for-profit sectors who report concerns about wrongdoing which they have encountered in the course of their work. The protections of the Act apply to:

• Employees
• Former Employees
• Trainees
• Contractors
• Agency Workers
• Volunteers
• Board Members
• Shareholders
• Job Applicants
• People on Work Experience and the Gardaí

The Legislation

The Protected Disclosures Act applies to both private and public sectors. The Protected Disclosures (Amendment) Act 2022 was published by the Minister for Public Expenditure and Reform and the main aim of this is to reposition the EU Whistleblowing Directive, which seeks to harmonise whistleblowing standards and protection in Europe.

Amendments to the previous 2014 Act

The amendments made in the Act will oblige companies to establish and maintain internal reporting channels and procedures for employees to make protected disclosures.

• The scope of the Act now includes board members, volunteers, shareholders and job applicants.
• From the 1st January 2023, all organisations with 250 or more employees must establish internal reporting channels.
• From the 17th December 2023, all organisations with 50 or more employees must establish internal reporting channels.
• All public sector organisations, regardless of size, must establish internal reporting channels.
• Internal reporting channels must include specific timelines.
• A designed person or function must be trained on how to deal with reports/disclosures for the internal reporting channel.
• Employees must be made aware of external reporting channels and the role of the Prescribed Person.

There can now be criminal penalties for penalisation in certain cases, including breaching the duty of confidentiality with regard to the identity of a reporting person.

The new act also allows the WRC or Labour Court to award compensation of up to €15,000 for individuals who are impacted from making a protected disclosure. This is in addition to the existing penalties of up to five times the annual salary for breaching employees’ rights. Previously, the burden of proof in cases of penalisation under the 2014 Act lay with the person alleging a wrongdoing.  The new Act now reverses this burden of proof. Penalisation would be presumed to have occurred because of or in retaliation to having made a protected disclosure unless the employer could prove the act or omission was on duly justified grounds.

The Act creates several new offences including:

• The hindering of, or attempting to hinder, a worker in regards to making a report.
• Penalising, threatening penalisation and/or causing or permitting any other person to penalise or threaten penalisation.
• Failing to establish, maintain and operate internal reporting channels and procedures.

Offences like this can attract penalties in the form of fines ranging between €75,000 and €250,000 and/or a maximum of 2 years imprisonment.

Anonymous Reporting

An employer is not obliged to accept and follow up on an anonymous report/disclosure. However, if the employer decides it is appropriate to do so, a follow-up on a matter may be considered.

Conclusion

Employers must familiarise themselves with the basics of the Protected Disclosures Act 2022. They must establish internal reporting channels and designate responsible, trained personnel to deal with any disclosures reported. The employer must communicate the organisations policy and channels for reporting protected disclosures to its employees. Protected disclosures must be handled promptly, comply with data protection and protect against penalisation. Employers must regularly review their procedures and ensure it complies with the Act.

Legal Island Training Resources for Your Staff

Whistleblowing Awareness in the Workplace | eLearning Course
Are you responsible for overseeing the implementation of training for all employees in your organisation?
It is important that your employees understand the importance of whistleblowing awareness in the workplace and the legislation that exists to protect both employees and employers when people speak up against wrongdoing in the workplace.
Legal Island’s Whistleblowing Awareness in the Workplace eLearning course is tailored specifically to your jurisdiction and is designed to complement your organisation’s own policies.

Click here to view our course on whistleblowing awareness in the workplace.