Ringing in the New Year with the EU Whistleblowing Directive
The Protected Disclosures (Amendment) Act 2022 commenced operation on the 1st of January 2023.
This new legislation makes significant changes to the operation of the legal framework for the protection of whistleblowers in Ireland, the Protected Disclosures Act 2014. These changes have important implications for employers in the public and private sectors and for persons prescribed under section 7 of the Act.
The Protected Disclosures Act 2014 (the “Act”) protects workers from retaliation if they speak up about wrongdoing in the workplace. Persons who make protected disclosures (sometimes referred to as “whistleblowers”) are protected by this law. They should not be treated unfairly or lose their job because they have made a protected disclosure.
The most material changes to the Act include:
- the introduction of a requirement for many employers to have a whistleblowing policy
- the creation of a new criminal offence for non-compliance
- the introduction of new avenues of redress for whistleblowers who allege they have been penalised and the reversal of the burden of proof in such claims.
What is a protected disclosure?
Making a “protected disclosure” refers to a situation where a person who is in a work-based relationship with an organisation discloses information in relation to wrongdoing that the person has acquired in the context of current or past work-related activity. This is sometimes referred to as “whistleblowing”. Such a person is referred to as a “worker” or “reporting person” and disclosing information in relation to alleged wrongdoing in accordance with the Act is referred to as “making a report” or “making a disclosure”. The Act provides specific remedies for reporting persons who are penalised for making a protected disclosure. “Penalisation” includes dismissal and any act or omission causing detriment to a reporting person. Penalisation can be caused not only by the reporting person’s employer but also the reporting person’s co- workers or otherwise in a work-related context. The Act provides significant forms of redress for penalisation and other loss.
What do employers need to do?
The WRC has already advised that it is expecting an increase in Protected Disclosures Act claims this year therefore it is vital that employers ensure they are compliant with the amended Act and are in a position to deal with whistleblowing reports under the new regime.
Private sector employers with 250 or more employees will be required to establish formal reporting channels for workers to report concerns about wrongdoing in the workplace. In addition, all public bodies will be required to overhaul their protected disclosures procedures to comply with the Act by the commencement date. Employers with between 50 and 249 employees will not be required to establish reporting channels until 17 December 2023.
Even though companies with less than 50 employees are exempt from the requirements set out in the Act, it would be good practice for such employers to implement similar mechanisms to deal with the reporting of any wrongdoings in the workplace. A well communicated whistleblowing policy, and internal reporting procedures will ensure employees feel comfortable in reporting any wrongdoings. By having such procedures in place, companies have an opportunity to identify and manage risk at an early stage, helping to avoid or limit financial and reputational damage.
For further information on applications of the act, penalisation, reporting, offences under the act and more download our Protected Disclosures document HERE which contains further information surrounding the Act.
