Protected Disclosures (Amendment) Act 2021August 2022
On 21st July 2022, the Protected Disclosures (Amendment) Act 2022
(‘Amendment Act’) was signed into law. It has yet to be commenced or ‘take effect’.
The Act updates the Irish Protected Disclosures Act 2014
(‘2014 Act’) and transposes the EU Whistleblowing Directive
into Irish law. Once commenced, the Amendment Act will:
- Require all organisations with 50 or more employees to have internal channels and procedures for their employees to make protected disclosures. (This changes the current position where only public sector employers are obliged to have such procedures in place.)
- Initially, the requirement will only apply to private sector employers with 250 or more employees.
- However, from 17 December 2023, this obligation will be imposed on all private sector employers with 50 or more employees.
- As it stands, under the 2014 Act, employees, former employees, trainers, independent contractors and agency workers are protected. The Amendment Act, however, extends the scope of the protected disclosures regime to cover volunteers, unpaid trainees, board members, shareholders, members of administrative, management or supervisory bodies and job applicants (where information on a relevant wrongdoing is acquired during the recruitment process or during pre-contractual negotiations).
- The channels and procedures shall provide for acknowledgement of reports by a designated impartial person, within 7 days, diligent follow-up of the reports received, the provision of feedback to the reporting person within 3 months and communication of the final outcome of any investigations triggered by the report.
- Reverse the burden of proof for penalisation cases. This means the employer will need to prove that any alleged penalisation was not a direct result of the employee making a protected disclosure.
Establishing Internal Reporting Channels
- Establish a new Office of the Protected Disclosures Commissioner will be established in the Office of the Ombudsman to support the operation of the new legislation.
Internal reporting channels and procedures may be operated internally by a person or department designated for that purpose or provided externally by an authorised third party.
The channels must be operated in a secure manner that ensures the confidentiality of the reporting person’s identity and any third party mentioned in their report.
Employees must be able to make their report in writing or orally or both.
Organisations who employ less than 250 employees may share resources for receiving and investigating reports which will allow group companies to avoid having to put in place multiple internal reporting channels. Acknowledgement, Feedback and Follow Up
Strict deadlines for acknowledging receipt, following up and providing feedback are required to be put in place by way of the internal reporting channels and procedures:
New office of the Protected Disclosures Commissioner
- Receipt of a protected disclosure must be acknowledged in writing within seven days.
- Designate an impartial person who is competent to follow up on reports, will maintain communication with the reporting person and where necessary, will request further information from, and provide feedback to, that reporting person.
- The designated person must diligently follow up on the report within three months including carrying out an initial assessment of the accuracy of the allegations made and, where relevant, address the breach reported, including, by way of internal enquiry, investigation, prosecution, action for recovery of funds, or the closure of the procedure.
- Feedback must be provided within three months, or six months in duly justified cases, informing the reporting person of the action envisaged or taken as follow-up and the grounds for such follow-up.
- Provision of clear and easily accessible information regarding: the procedures for making a protected disclosure, the conditions under which such reports may be accepted and follow-up undertaken, the procedures for making a protected disclosure to the Office of the Protected Disclosures Commissioner
A new Office of the Protected Disclosures Commissioner (‘the Commissioner’) will be established within the Office of the Ombudsman to support the operation of the new legislation. The Commissioner will direct protected disclosures to the most appropriate body when it is unclear which body is responsible and where this body cannot be identified, the Commissioner will be obliged to accept and investigate the protected disclosure itself.
The Commissioner will have extensive powers to carry out their duties. They will have the power to require the production of information and/or or records, books, documents or other things and to require the attendance of any person for this purpose.
Enhancement of protections for workers
The Amendment Act further enhances the protections for workers who suffer penalisation as a result of making a protected disclosure by reversing the burden of proof in civil proceedings, expanding the provision of interim relief to include forms of penalisation other than dismissal, and providing for criminal penalties for penalisation.
The definition of penalisation is significantly expanded by the EU Whistleblowing Directive to include withholding of training, a negative performance assessment or employment reference, harm, including to the person’s reputation, blacklisting, and psychiatric or medical referrals.
The Amendment Act proposes to reverse the burden of proof for proceedings concerning allegations of penalisation for having made a protected disclosure. It also enables workers to seek interim relief from the Circuit Court for penalisation other than dismissal. The Bill provides for a maximum award of compensation in the sum of €15,000 from the Workplace Relations Commission for individuals who are not in receipt of remuneration from the employer with whom they are in a work-based relationship.
The Amendment Act makes it a criminal offence to:
- hinder or attempt to hinder a worker in making a report;
- penalise or threaten penalisation or cause or permit any other person to penalise or threaten penalisation;
- bring vexatious proceedings;
- breach the duty of confidentiality in section 16 regarding the identity of reporting persons;
- make a report containing any information that the reporting person knows to be false; or
- fail to establish, maintain and operate internal reporting channels and procedures.
The Amendment Act also provides for very substantial fines (ranging between €75,000 and €250,000 for convictions on indictment) and the possibility of a term of imprisonment not exceeding two years for employers who are found to have committed a criminal offence under the Amendment Act.
Although organisations with 50 – 249 employees have until 17th December 2023 to comply with the new legislation, consideration might be given now to have in place or review and enhance existing whistleblowing policies in anticipation of the introduction of the new enhanced regime.
Organisations will also be required to designate the appropriate staff to receive protected disclosures in a secure and confidential manner and provide them with training particularly in relation to the new timelines for acknowledging and following up protected disclosures.
To see learn more on how RegSol can assist your firm in implementing the new Amendment Act, please contact us at firstname.lastname@example.org