Introduction ⚓︎

In Ireland, the fundamental legislation in existence relating to the area of whistleblowing is the Protected Disclosures Act 2014. Whistleblowing refers to workers reporting certain types of wrongdoing’, referred to as making a protected disclosure. Examples of wrongdoings include endangering the health and safety of individuals, failing to comply with legal obligations, damaging the environment, making criminal offences, misusing funds and concealing or destroying information about any wrongdoings.

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.

The Legislation ⚓︎

The Protected Disclosures Act 2014 applies to both private and public sectors, however there is no current requirement for the private sector to have these whistleblowing policies and procedures in place. The Protected Disclosures (Amendment) Bill 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 harmonize whistleblowing standards and protection in Europe.

Proposed Amendments ⚓︎

The amendments made in the bill will oblige companies to establish and maintain internal reporting channels and procedures for employees to make protected disclosures. These obliged companies are all public sector organisations in their entirety and private sector employers with 50 or more employees.  These new internal reporting channels can be subject to WRC inspections.

The amended bill widens the scope for employees to seek interim relief relating to forms of penalisation other than dismissal. The bill also broadens the definition of a relevant wrongdoing and overturns the burden of proof in penalisation claims. In addition, a designated person must now be appointed in every organisation to deal with reports.  A strict timeline for acknowledging, providing feedback and dealing with any complaints must be followed.

There can now be criminal penalties for penalisation in certain cases, including breaching the duty of confidentiality in regards to the identity of a reporting person. The scope of protection for a person who can make a protected disclosure has been updated to include almost everyone associated with an employer including volunteers, shareholders and job applicants.

The new amendments will also allow the WRC or Labour Court to award compensation of up to or €15,000 for individuals who are impacted as a result of having made a protected disclosure.  This is in addition to the existing penalties of up to five times the annual salary for breaching employees’ rights (e.g. for dismissal of an employee for making a protected disclosure). At present, the burden of proof in cases of penalisation under the 2014 Act rests with the person alleging a wrongdoing.  The new Act will reverse 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 Bill creates several new offences that are now considered wrongdoing. Some of these offences include the hindering of or attempting to hinder a worker, in regard to making a report, penalising or threatening penalisation, causing or permitting another person to penalise or threaten penalisation and failing to establish, maintain and operate internal reporting channels and procedures. Any offences like this can attract penalty fines ranging between €75,000 and €250,000 and/or a maximum of 2 years' imprisonment.

As mentioned above, the amended Bill also broadens the definition of a relevant wrongdoing. In relation to relevant wrongdoings, the concept of what can be reported will also change. This is because the definition of "relevant wrongdoing" was widened to include breaches of EU law in certain areas such as financial services, product safety, food safety and public health. A breach is defined as an act or omission that is unlawful and falls within the scope of certain EU acts relating to public procurement, financial services, anti-money laundering and terrorist financing, and consumer protection, amongst other things. It also brings clarity to an area that previously caused uncertainty which is interpersonal grievances and that is now excluded from the ambit.

As mentioned above, the amendments require that internal reporting channels and procedures for employees to make protected disclosures be maintained. Employers will now need to prepare to put these formal reporting channels and procedures in place as obliged. Tips to help prevent wrongdoing occurring in companies and protected disclosures from being made include getting the right culture that fits into the company, offering training and support, preparing and being able to respond to employees’ queries, resolving the wrongdoing quickly.

Conclusion ⚓︎

Employers must also ensure confidentiality of the identity of the reporting person and acknowledge receipt of the disclosure within seven days of receipt. The employer will also be obliged to involve diligent follow-up by a designated impartial person or persons and have reasonable timeframes to provide feedback - not exceeding three months. Finally, employers will be required to ensure the provision of clear and easily accessible information regarding wrongdoing and protected disclosures in their company.