Protecting whistleblowers
The main aim of Ireland’s Protected Disclosures (Amendment) Act 2022 is to reposition the EU Whistleblowing Directive, which seeks to harmonise whistleblowing standards and protection in Europe. Here, The HR Suite’s Caroline Reidy outlines what your business needs to know about this important legislation
Print2 January 2025
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.
Protected disclosures
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 people 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 Gardaí
Amendments to previous act
The amendments made to Ireland’s Protected Disclosures Act in 2022 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.
- Since 1 January 2023, all organisations with 250 or more employees must establish internal reporting channels, and since 17 December 2023, all organisations with 50 or more employees must also establish internal reporting channels.
- All public sector organisations regardless of size must establish internal reporting channels.
- Internal reporting channels must include specific timelines.
- A designated 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 in regards 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 two 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 organisation’s 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.
Read more: Navigating redundancy in Ireland: Legal obligations and best practices
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