Everything you need to know about Ireland’s protected Disclosures (Amendment) Bill 2022
In April 2019, the EU Parliament passed an EU Directive on Whistleblowing (“the Directive”), to create a uniform standard of protection for whistleblowers across the Member States. Deputy Michael McGrath, Minister of Finance for Ireland, described the Directive as, ‘among the most far-reaching and most significant pieces of legislation ever to be adopted by the EU.’
Ireland’s Protected Disclosures (Amendment) Act 2022 came into force on 1st January 2023. It builds upon Ireland’s pre-existing whistleblowing legislation (Ireland’s Protected Disclosure Act 2014) and ensures Ireland is compliant with EU law.
Below, we have laid out some of the biggest changes to whistleblowing legislation in Ireland.
A new Office of the Protected Disclosures Commissioner
A new Office of the Protected Disclosures Commissioner will be established in the Office of the Ombudsman to support the new measures being introduced. The Commissioner will be responsible for directing any protected disclosures they receive to the appropriate regulatory body or person most competent to take action. As in the UK there is a list of “prescribed persons” who are identified to receive most whistleblowing reports. The new Commissioner will also follow-up on disclosures when where there is no one suitable available. Both the Commissioner and prescribed persons will have to follow new rules set out in the Amendment Act for establishing reporting channels, acknowledging receipt of concerns, assessing those concerns and providing feedback.
Ireland’s previous legislation only afforded protection to workers, including employees, consultants, contractors, those on work experience and agency workers. Under the Amendment Act, the definition of ‘worker’ has now been extended to include:
- Board Members
- Job Applicants
Ireland’s Amendment Act recognises that all individuals in a work setting can spot harm and deserve adequate protection so they can voice their concerns safely. This differs from the UK’s legislation, as the Public Interest Disclosure Act 1998 (PIDA) excludes multiple groups that can still be penalised for speaking out.
While employers are not obliged in Ireland to accept or follow up anonymous reports, the amendments make clear that any anonymous whistleblower who is subsequently identified and penalised shall be entitled to the same protection as other workers.
A long list of potential “penalisation” is included in Section 3.
The Amendment Act has also expanded upon what types of concerns can qualify as protected disclosures. See the table below for the complete list of wrongdoing categories.
|Wrongdoing under the Protected Disclosures Act 2014||New areas of wrongdoing introduced by the Amendment|
||Breaches of EU law in the following areas:
Obligations for employers
New requirements for employers are created by the Amendment Act. Previously, only certain sectors and public organisations were required to have whistleblowing policies in place.
The Amendment Act requires all employers with 50 or more employees to create a whistleblowing policy setting out the reporting channels and procedures for employees to make protected disclosures. Employers must maintain whistleblowers’ confidentiality, diligently follow up on concerns and provide feedback to whistleblowers. This will apply immediately to employers with 250 or more employees. Smaller organisations with 50 – 249 employees have until 17th December 2023 to set this up.
The Irish Government have provided guidance for employers detailing the new requirements.
Organisations also need to promote the existence of the internal channels and make it accessible to all workers. Not only does this simplify the process, it also will help in erasing the stigma surrounding whistleblowing.
Under PIDA there is no duty for employers to put whistleblowing policies or procedures in place (outside of certain regulated sector), this is something that Protect would like to see adopted in the UK, as our current law requires nothing of employers and only protects whistleblowers once they have suffered detriment.
The Amendment Act has introduced stronger better protection for whistleblowers and created better procedures for wrongdoings to be investigated. However, there are concerns that the Amendment Act hasn’t gone far enough.
The carve out clause
The Amendment includes a carve out clause for interpersonal conflicts, which will exclude certain concerns from counting as a protected disclosure. Specifically, workers will not be protected when they speak up about conflicts between themselves and another worker, or when raising a grievance which concerns themselves exclusively.
On the surface, this makes sense. When a worker has issues at work that only affect them, it is typically viewed as a grievance issue rather than a whistleblowing concern. However, the carve out clause creates uncertainty when what may seem like a personal concern is actually a wider issue that can impact others like bullying or harassment. This is because unlike the UK, Irish law has no requirement for a protected disclosure to contain a public interest element.
The Irish Government may need to provide further guidance on what types of concerns are included in this carve out.
Financial award cap
Whistleblowers who have been penalised for making protected disclosures can receive compensation. Those who received a salary from the organisation can receive up to 5 years’ pay, whilst those who do not can receive up to €15,000. This differs to UK law, where claimants have no limit on their rewards, as Parliament recognises whistleblowing can often be, ‘career-ending.’
Deputy Mairéad Farrell argues that there should be no limit on the amount a whistleblower can be rewarded as they ‘can suffer greatly for acting in the public interest and they pay a very high price for speaking out, both financially and in terms of their health.’
Lessons to learn
The Amendment Act has made major improvements on how protected disclosures should be raised and investigated. It will be interesting to see the impact for individuals and organisations as changes are rolled out.
At Protect, we’re excited to see the Amendment being introduced. We hope it encourages the UK Government to complete its long-awaited review of PIDA and consider adopting international best practice from the EU and around the world.. Check out our legal reform campaign for more details on how PIDA needs improving.
As of writing this, 26 out of the 27 Member States are in the process or have already implemented legislation to comply with the Directive. For more information on the EU Whistleblowing Directive, you can visit our website.