The Protected Disclosures (Amendment) Act 2022 (the “Act”) has been signed into law by President Higgins and is due to commence shortly on the signing of a Ministerial Order.
This legislation transposes the EU Whistleblowing Directive (EU 2019/1937) into Irish law and provides for an overhaul of the statutory framework for the protection of whistleblowers in Ireland and amends the Protected Disclosures Act, 2014 (“2014 Act”). The Act establishes the Office of the Protected Disclosures Commissioner. It also places an obligation on all private sector employers with 50 or more employees to establish, by December 2023, formal procedures and channels for employees to make protected disclosures.
This is a significant change to employment practice for private sector employers which will require employers to introduce new policies and procedures to adhere to the Act. In this article Kate Field (Managing Associate) outlines how employers can prepare for the commencement of the Act.
What are protected disclosures and who is a whistleblower?
The 2014 Act protects employees who disclose relevant information which came to their attention in connection with their workplace and the employee reasonably believes that the information shows wrongdoing. The 2014 Act was largely intended to deal with complaints of a public interest nature. However, the definition of protected disclosures in the 2014 Act was interpreted recently by the Supreme Court in the case of Baranya v Rosderra Irish Meats  IESC 77 and was deemed to be drafted in such a broad way that it did not limit itself to matters of a public interest. The Supreme Court held that the definition encompassed reports of workplace matters which were personal to the individual raising the complaint such as personal health and safety concerns in the workplace and workplace grievances.
The definition of ‘relevant information’ in the 2014 Act has now been widened under the Act to include information that came to the attention of the worker in a work-related context.
The definition of ‘relevant wrongdoings’ has also been expanded under the Act to include a breach of all EU laws listed in the Act.
Does the Act apply to my organisation?
If your organisation is in the private sector and has 50 or more employees, you are obliged to comply with the Act. Employers have until 17 December 2023 to prepare for these new obligations.
If your organisation is a public body or falls within the scope of certain European Union legislation, which include financial services, product safety and compliance, markets, prevention of money laundering and terrorist financing, environmental protection, food and feed safety, animal health and welfare, public health, consumer protection, privacy and personal data protection and transport safety you must comply with the legislation now regardless of the size of the organisation.
The Minster may extend the Act’s application to employers with less than 50 employees over time.
HAS THE CATEGORY OF WORKERS WHO CAN MAKE A PROTECTED DISCLOSURE CHANGED?
Yes, the Act refers to ‘workers’ as opposed to ‘employees’. Under the Act the definition of ‘worker’ has been expanded to include volunteers, unpaid trainees, board members, shareholders, members of administrative bodies, members of management bodies, members of supervisory bodies, and job applicants (where information on a relevant wrongdoing is acquired during the recruitment process or during pre-contractual negotiations).
WHAT INTERNAL REPORTING PROCEDURES DO I NEED TO INTRODUCE?
- You will need to establish and operate internal reporting channels that preserve the confidentiality of the reporting persons identity.
- If a report is made, you will have to acknowledge this report in writing to the reporting person within 7 days of its receipt.
- You will need to assign an impartial, competent person, known as a designated person, to follow up on reports of whistleblowing. The designated person will communicate with the reporting person.
- The designated person will need to follow up diligently on the report. This includes providing feedback within a reasonable period and, in any case, within 3 months, and if requested by the reporter in writing, at 3-month intervals, until the report is closed.
- If following the initial assessment, the designated person decides there is prima facie evidence a wrongdoing may have arisen, action must be taken to address the relevant wrongdoing, with regard to the nature and seriousness of the matter.
- Internal reporting channels and procedures may be operated by a person or department assigned by you internally or externally by a third party authorised by you.
- You must provide clear and easily accessible information on procedures relating to reporting (through a specific policy).
- The Workplace Relations Commission will be entitled to carry out inspections to ensure these new reporting procedures are being implemented by organisations.
WHAT HAPPENS IF A WORKER CLAIMS TO HAVE BEEN PENALISED FOR MAKING A PROTECTED DISCLOSURE?
Penalisation is defined under the Act as any direct or indirect act or omission which occurs in a work- related context and is prompted by the making of a report and causes or may cause unjustified detriment to a worker. The Act lists a wide variety of acts which could constitute penalisation. Examples of the acts listed include dismissal, demotion, withholding of training, transfer of duties, change of location, harm to the workers reputation particularly through social media, failure to provide a permanent contract, blacklisting and medical or psychiatric referrals.
An employer who is found to have penalised an employee for making a protected disclosure faces significant consequences and penalties. Employers must be aware that if an employee is found to have been unfairly dismissed on foot of raising a protected disclosure, the compensation limit the employee could be awarded by the Workplace Relations Commission is increased from up to 2 years remuneration to a maximum of 5 years remuneration.
Under the new Act, the burden of proof is reversed in civil proceedings and is on the employer to prove the alleged act of penalisation (such as dismissal) was based on duly justified grounds and did not arise because the employee made a protected disclosure.
Workers can apply to the Circuit Court for interim relief within 21 days following the penalisation.
Damages for penalisation can be reduced by up to 25% where the reporting person reported false information and it was within their knowledge.
WHAT DO WE DO IN THE EVENT OF AN ANONYMOUS PROTECTED DISCLOSURE?
Under the Act you do not have to accept and follow up on anonymous reports but you may choose to do so and it is always best practice to look into and investigate all reports which may amount to a protected disclosure.
If a worker makes a disclosure through an anonymous report and is then identified and penalised for making a protected disclosure they can be protected by the Act.
ARE THERE ANY NEW OFFENCES UNDER THE ACT?
Yes, it is now an offence to hinder or attempt to hinder a worker in making a report, penalise or threaten penalisation of a worker, bring vexatious proceedings, breach the duty of confidentiality regarding the identity of reporting persons, make a report containing any information that the reporting person knows to be false and/or fail to establish, maintain and operate internal reporting channels and procedures.
Being found guilty of these offences can result in an indictable or summary conviction.
ARE WORKPLACE GRIEVANCES EXCLUDED FROM THE ACT?
The Act specifically excludes workplace grievances from the definition of a ‘relevant wrongdoing’. The Act introduces a new section 5A and provides that a matter concerning interpersonal grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person which concerns the worker exclusively shall not be a relevant wrongdoing. The Act further provides that such workplace grievances may be dealt with through the employer’s grievance procedure or any other relevant procedure.
This provision appears to be an attempt to deal with the recent Supreme Court decision (Baranya v Rosderra Irish Meats  IESC 77) where a complaint by an employee that he suffered pain during the course of work was deemed to amount to a protected disclosure as opposed to a workplace grievance and fell under the remit of the 2014 Act. However, the Act does not go further and expressly confines wrongdoings to matters of public interest. This means that while workplace grievances appear to be excluded from the Act other matters related to employment may not be excluded such as alleged breaches of health and safety legislation.
WHAT DO EMPLOYERS NEED TO DO?
Employers in the private sector need to start putting in place channels for dealing with reports of protected disclosures. In the first instance employers should put in place a whistleblowing policy and should ensure that the person designated under this policy to deal with such reports are trained and understand the requirements under the Act.
Employers and HR managers should be alert to the fact that certain employee grievances could still amount to a protected disclosure. These reports should be carefully investigated, dealt with in accordance with procedures in place and employees should not face detriment or penalisation as a result of making such reports.