Whistleblowing has long been an awkward topic for employees and employers alike. Although some protections have been afforded to employees for some time, many have resisted raising concerns for fear of punishment or dismissal. What’s more, employers haven’t always been required to have robust reporting procedures in place, jeopardising the safeguarding of information and confidentiality.
However, the introduction of the Protected Disclosures Act 2014 brought greater reassurance to employees wishing to report potential wrongdoing within an organisation. Thanks to recent developments and the introduction of EU directives, employees have greater protections from reprisal than ever before.
What is the Protected Disclosures Act 2022?
The 2022 Act came into effect on January 1, 2023. An amendment to the 2014 Act, the 2022 amendment saw the implementation of the EU Whistleblowing Directive into Irish law.
While the original act provided a framework of legal protections for whistleblowers, it could only be applied to employees. The 2022 revision significantly expands whistleblowing policy in Ireland, extending legal protections to non-employees, including those who have merely applied for a job or prospective employees who are negotiating a contract.
This heavily revised whistleblowing act also saw the establishment of the Office of the Protected Disclosures Commissioner. Responsible for redirecting disclosures to the relevant authority or government minister, the Commissioner gives workers greater confidence that the information they provide will be properly pursued. Furthermore, a strengthened legal framework and revised protections make it easier for workers to report wrongdoing without the threat of penalisation.
The amended act has major ramifications for employers. Any employer with more than 250 employees will need to ensure its whistleblowing policy is fully compliant with the new regulation. As of December 17, 2023, this is limited to any employer with more than 50 employees. Additionally, any employer within the private sector or subject to certain EU laws is affected.
To adhere to the new mandates, organisations must provide secure reporting channels for whistleblowing and uphold confidentiality. This needs to be available for both written and oral disclosures. To remove bias, employers are also required to appoint an impartial party to oversee communication with any employee who wishes to make a protected disclosure. Another key requirement is that employees are made aware of all reporting channels and whistleblowing options available.
What is a Protected Disclosure?
When we talk about protected disclosures in Ireland, we’re using the formal definition of whistleblowing. However, it’s more complex than that, with disclosures granting a degree of legal protection for employees who choose to raise concerns about potential wrongdoing at their current place of work or a previous one.
That being said, a protected disclosure is only classified as such if an employee discloses information that is considered relevant. In other words, any information offered needs to have been discovered within the context of the work. Whistleblowers also need to have good reason to believe that wrongdoing has occurred.
What Counts as Wrongdoing?
This is where things get a little complicated. However, you don’t need to be an employment law consultant to separate what’s classified as wrongdoing from what isn’t. While it isn’t an exhaustive list, below are some of the things that might be classified as wrongdoing:
- A criminal offence has occurred.
- An employer has breached EU laws.
- Misappropriation of public funds.
- An employer has failed to comply with legal obligations.
- The environment has been damaged.
- Health and safety non-compliance.
- An attempt by an employer to cover up evidence of any of the above wrongdoings.
These are just a few examples of wrongdoing. Whistleblowing legislation in Ireland means that even these have caveats. For example, a disagreement between an employee and employer regarding contractual obligations can’t be used as an example of wrongdoing.
Employers guilty of a breach of financial service legislation can also now be classified as relevant wrongdoings. Some of the affected legislation includes:
- Markets in Financial Instruments Directive (MiFID).
- Packaged Retail and Insurance-Based Investment Products Regulation (PRIIP).
- Undertakings for Collective Investment in Transferable Securities Directive (UCITS).
The 2022 Act also introduces several key offences to the whistleblowing legislation. A failure to create and maintain whistleblowing channels and reporting procedures, along with breaching confidentiality are now classed as an offence.
Attempting to hinder the progress of a report also becomes an offence. Employees who knowingly offer false evidence also fall under the microscope. If convicted of any of these offences, perpetrators can face a prison sentence of up to two years.
What Doesn’t Count as Wrongdoing?
There’s a lot of confusion about what constitutes wrongdoing and what doesn’t. With a few rare exceptions, the below would typically NOT be classified as wrongdoings:
- An employee-employer dispute regarding a contract.
- Personal workplace grievances
- If the information you have provided is later disclosed in a privileged legal setting
Once again, this isn’t a complete list and many people make disclosures based on incorrect assumptions. For example, advice sought from an HR consultant is generally not afforded protections by privilege. However, there are exceptions to the above.
Who Can Make a Protected Disclosure?
Many people assume that whistleblowing in Ireland is confined to current employees of a company. However, along with current employees, the following have always been able to disclose information:
- Former employees.
- Anyone contracted under a contract to provide services.
- Agency workers and subcontractors.
- Individuals on work experience placements.
The 2022 amendment allows a much broader group of people to disclose information. Along with those listed above, the following can now make a disclosure:
- Volunteer workers.
- Trainees and interns.
- Board members.
- Job applicants.
Who Can You Make a Disclosure To?
When it comes to making a disclosure, you have a few different reporting channels available to you:
- Employers: The most straightforward way to make a disclosure. You can do so orally or in writing.
- Prescribed Persons or Bodies: These are generally people in charge of public bodies who handle regulation of a certain sector, although they’ll need to be relevant to the sector you work in.
- External Persons: You can disclose to an external person, such as a minister or legal professional if you feel a previous report wasn’t handled correctly.
- Protected Disclosures Commissioner: Part of the Office of the Ombudsman, this newly-created role is another channel for making disclosures. The Commissioner will then forward the information or handle the case themselves.
How Will Your Report Be Dealt With?
“There have always been negative connotations associated with the term whistleblowing. The idea of ‘tell-tale’ or ‘informer’ tends to creep into employees’ minds. Employees need to start realising that whistleblowing is in place to protect them, the company and, at times, the public interest.”
– Caroline Reidy, Managing Director of The HR Suite
This quote from a recent article by Managing Director of the HR Suite Caroline Reidy sums up the uncertainty many workers feel about whistleblowing rather nicely. For too long, many workers have resisted whistleblowing on employers for fear of penalisation, even when the wrongdoing involved has wide-reaching ramifications. While self-interest is part of this, many workers haven’t felt confident enough in the reporting avenues available to them.
Thankfully, with the arrival of the 2022 Act, new guidance on reporting channels and procedures has been introduced. Employers are now required to provide secure channels for whistleblowers, guaranteeing confidentiality to anyone making a protected disclosure. Reports must be acknowledged within 7 days, with employers following up on any claims of wrongdoing. Feedback should be provided within three months, even if it only outlines a current plan of action.
If you’re reporting to an external or prescribed person, you should also receive an acknowledgement of receipt within 7 days. Regardless of whether you made a report anonymously or not, your report will then be followed up on. Feedback is usually provided within three months, and you should also receive details about the outcome of an investigation.
After submitting a report to the Office of the Protected Disclosures Commissioner, you’ll also receive confirmation of receipt within 7 days. A suitable prescribed person will then be identified to progress with your disclosure. This can take up to 14 days from when your report was initially received. Once again, you’ll typically receive feedback within three months, along with information about the outcome of an investigation.
Long Overdue Legislation
With the implementation of the EU Whistleblowing Directive Ireland has now become a far more hospitable place for employees looking to raise concerns about wrongdoing at work. Historically, whistleblowers have always had to face potential reprisal for speaking out, potentially putting their financial situation and mental health at risk.
The establishment of the Office of the Protected Disclosures Commissioner and the introduction of rigorous new policy come as welcome news for workers. For employers, the changes have far-reaching implications. Adherence to whistleblowing policies may require significant internal reform, while protected disclosures need to be enabled with the right procedures and reporting channels.
Looking for Advice on New Legislation?
In need of guidance to help you adapt to the latest legislative changes? At the HR Suite, we can help you navigate the new requirements surrounding protected disclosures. Offering industry-leading HR outsourcing, training and consultancy services, our expert team can help you develop internal policies, procedures and reporting channels for employees.