Protected Disclosures (Amendment) Act 2022 introduces major whistleblowing changes for employers

The Protected Disclosures (Amendment) Act 2022 (the “Act”) has completed the legislative process and an order to commence the Act is expected shortly. The Act significantly amends the Protected Disclosures Act 2014 and transposes the EU Whistleblowing Directive (2019/1937). The Act represents a very substantial development in Irish law related to whistleblowing, and imposes significant new obligations on employers.

1. The key developments

(a) Procedures: The Act introduces a new obligation to have a whistleblowing procedure, and significant detail on the content of the procedures, which applies to:

• All public sector employers (public sector employers were already obliged to have a whistleblowing procedure, but that obligation is amended significantly);

• Any employer with 250 or more employees (from the date of commencement of the Act);

• Any employer with 50 or more employees (from 17 December 2023); and

• All employers who fall within the scope of certain EU law provisions referred to in the Directive (from the date of commencement of the Act). For example, this will apply to most employers in the area of financial services.

(b) Designated person: Any employer required to have a procedure, will also be required to appoint a designated person to receive and follow up on disclosures. There are specific requirements in the Act related to acknowledgement, “diligent follow-up”, meetings, record keeping, assessment and feedback. The designated person is a crucial role under the Act.

(c) Protected Disclosures Commissioner: The Act provides for the establishment of the Office of the Protected Disclosures Commissioner. This Office may receive and redirect protected disclosures to prescribed persons or other suitable persons. In cases where a prescribed person or suitable person cannot be identified, the Office may also assess and investigate disclosures.

(d) Wrongdoing: The Act amends the definition of “relevant wrongdoing” (the types of wrongdoing that a person may disclose and be protected under the 2014 Act). The amendments protect whistleblowers who disclose breaches of a range of EU laws that are prescribed in the EU Whistleblowing Directive. 

(e) Interpersonal grievances: The Act excludes “interpersonal grievances” from the definition of a protected disclosure. A person who raises an interpersonal grievances with their employer will not have special protection under the 2014 Act, but should still be able to raise the grievance through normal internal procedures. This amendment seeks to address the issues raised in the Supreme Court judgment in Baranya v Rosderra Meats [2021] IESC 77, where it was held that a complaint about health and safety issues affecting a single employee could constitute a protected disclosure.

(f) Worker: The Act extends the scope of persons who are protected under the 2014 Act, by extending the definition of a “worker” so that it allows wider categories of people to disclose and be protected by the 2014 Act. “Worker” may now include shareholders; volunteers; trainees; members of the administrative, management or supervisory body of an undertaking (e.g. board members); and those who acquire information during a recruitment or other pre-contractual process (e.g. job applicants). 

(g) Remedies: The Act makes important changes to the remedies available to whistleblowers and others. The Act reverses the burden of proof in penalisation complaints, which will make it easier for whistleblowers to succeed in such complaints. An act of alleged penalisation will be deemed to have been a result of the worker blowing the whistle, unless the employer proves that the alleged act of penalisation was based on other duly justified grounds. There are also other changes to the definition of penalisation, the range of workers that can make such complaints, and the levels of award for such complaints. Interim relief (the ability to obtain a temporary injunction before the full hearing of the legal claim) is also now available in cases of penalisation (before it was only available in cases of dismissal). Overall, the Act significantly improves the protections for whistleblowers, but there is, however, also a new provision that allows a legal claim by a person who suffers damage resulting from the making of a report, where the whistleblower knowingly reported false information.

(h) Criminal offences: The Act creates a range of new offences. Amongst other things, it will be a criminal offence to penalise a whistleblower; bring vexatious proceedings against a whistleblower; or breach the duty of confidentiality provided for in the Act. Importantly, it will also be an offence to fail to have a whistleblowing procedure (when required to do so by the Act). 

(i) Transitional provisions: The Act sets out unusual rules concerning penalisation and detriment, which were added late in the legislative process, and will apply to specific cases depending upon when the disclosure was made, or penalisation occurred. They will generally allow a whistleblower to get the benefit of the more favourable provisions of the Act in specific cases, for example in certain cases where a disclosure was made before the Act commenced, but penalisation did not occur until after the Act commenced.

2. The key steps for employers

(a) Ensure you have appropriate whistleblowing procedures in place. Procedures are a legal requirement for certain employers, and a good practice requirement for all. A well drafted procedure will ensure employees have an internal reporting channel and reduce the risk of a disclosure to other bodies outside the employer. Procedures may also reduce the risk of successful legal claims. The potential for criminal prosecution for certain employers makes a well drafted procedure even more important in this area. Any existing whistleblowing procedures should be reviewed against the detailed provisions of the Act.

(b) Confirm if you are an employer to whom the additional obligations concerning procedures contained in the Act applies. In the private sector, this will largely depend on an analysis of the type of work and/or number of employees. If the Act applies to you, your procedures should mirror the requirements of the Act and you should also appoint a designated person, who is appropriately trained to deal with any disclosures. 

(c) Deal appropriately with any whistleblowing disclosure. If covered by the Act, the Act must be complied with. In any event, you should ensure that any whistleblower is never penalised for raising a legitimate concern and any concern is assessed and/or investigated in an appropriate manner.

(d) In the public sector, your whistleblowing procedures will need to be amended to comply with the Act, designated person (or persons) appointed, and you will need to also be aware of the more detailed reporting obligations contained in the Act.

3. Training

Training in the area of whistleblowing is a requirement for anyone dealing with protected disclosures, particularly if you hold the role of a designated person under the Act. ByrneWallace LLP is a leading provider of training in the area of whistleblowing. We offer training to both private sector and public sector employers, and can tailor training sessions to specific employer requirements.

For public sector employers, you can avail of our training services via the Protected Disclosures Training Framework for the public sector. Please contact Mr Michael Ryan, Department of Public Expenditure and Reform, Michael.Ryan@per.gov.ie or events@byrnewallace.com for further details.     

For private sector employers, please contact events@byrnewallace.com for further details.