This year (2023), we host our 16th Employment Law Breakfast Briefing. We decided to catch up with Robin Hyde of Purdy & Co. Solicitors to brief us on the Protected Disclosures (Amendment) Act 2022 and the legislative changes HR professionals, people managers and business owners need to familiarise themselves with to be compliant.
What is the Protected Disclosures (Amendment) Act 2022?
An extended list of protections for making a ‘protected disclosure’, or as we more commonly know it, ‘whistleblowing’, came into place on the 1st of January, 2023, with the Protected Disclosures (Amendment) Act 2022, which we will refer to as the “Amendment Act” in this article. This new law has transformed the legal landscape for those wishing to raise a concern regarding the workplace they currently or previously worked in. The Amendment Act extends beyond employees to shareholders, board members, volunteers, job applicants and agency workers, among others outlined in the table below.
An extended list of protections for making a ‘protected disclosure’, or as we more commonly know it, ‘whistleblowing’
Protected Disclosures (Amendment) Act 2022 = Amendment Act
Protected Disclosures = Raising concerns regarding the workplace
Worker = employee, shareholder, board member, volunteer, job applicant, agency worker, etc.
The information in this table includes the new protections brought in under the Amendment Act, which expands the scope of protections for those wishing to make a protected disclosure. It also places new and enhanced obligations on businesses with more than 50 employees. For some employers, these obligations already apply, while for others, they will not come into effect until the 17th of December, 2023. Read on to find out more.
Definition of “Worker”
Included employees, consultants, and agency workers
Now also includes those who are in the process of applying for a job within the business, pre-contractual negotiations (other than a recruitment process), those undergoing training, shareholders, members of boards and volunteers.
Definition of “Penalisation”
Definition of “Relevant Wrongdoing”
Now include breaches of EU acts such as those on procurement, financial services, consumer protection and protection of the environment.
How do I provide the appropriate reporting channels for workers?
Employers in the private sector with 50 or more employees must maintain internal channels for employees to make protected disclosures and follow-up. This will not come into effect for employers with between 50 and 249 employees until the 17th of December, 2023.
Helpfully, there is scope for an employer to conduct an initial assessment of the complaint, which does not currently exist under the previous 2014 Act. If the employer decides there is no evidence that a wrongdoing has occurred, they should close the whistleblowing procedure or refer the matter to another policy, such as the grievance procedure. As soon as practicable, they should notify the worker who made the disclosure in writing of this decision and the reasons for it. However, if the employer decides that there is evidence that wrongdoing may have occurred, they must take appropriate action to address it.
The employer must provide easily accessible reporting channels, which should be communicated through a revised policy. These channels must be accessible to workers other than employees, such as shareholders, board members or volunteers. For a full list of workers who are protected by the Amendment Act, please visit Citizen’s Information. Internal reporting channels may be provided externally by a third party where their employee’s headcount is less than 250. Protected disclosures can be made orally or in writing, depending on the employee’s preference.
Protected disclosures can be made orally or in writing, depending on the employee’s preference.
Receipt of the protected disclosures must be acknowledged within seven days. Follow-up of the protected disclosure must be completed, with a report made by an impartial person, within three months of the receipt. Feedback on actions taken or proposed must also be communicated to the worker within three months (or six months in duly justified cases) of receiving the protected disclosure and the final outcome communicated to the worker. No follow-up is required if the employer decides that the relevant wrongdoing is minor. The worker must be notified of this decision.
Confidentiality and anonymity apply to the identity of the accused wrongdoer and the reporting person. In most cases, a worker’s identity must not be disclosed without their consent except to those the employer considers necessary for following up on the protected disclosure. If that is necessary, then the worker must be informed of this in writing (together with the reasons) except in certain limited circumstances, such as where this notification would jeopardise the effective investigation of the wrongdoing.
Compensation awards of up to five years pay can be made by the Workplace Relations Commission (WRC), where a worker is penalised for making a protected disclosure. Where a worker is not in receipt of remuneration, for example, a job applicant, or volunteer, the WRC can award up to €15,000 to these individuals.
Employers must be mindful that, where previously (under the 2014 Act), an employee who claimed that they were dismissed due to having made a protected disclosure could apply to the Circuit Court for an injunction to restrain the dismissal, under the Amendment Act this right now extends to any act of penalisation (including, for instance, a negative performance review).
In addition, the Amendment Act provides several new offences on the part of employers, including where
it hinders a worker from making a report
it penalises or threatens to penalise a person who made a protected disclosure
it breaches the duty of confidentiality
it fails to put internal reporting channels and whistleblowing procedures in place
It is also an offence for a person to make a protected disclosure containing any information the person knows to be false. Depending on the offence, the fines range from €5,000, or imprisonment for up to 12 months or both. More significant penalties apply if the conviction goes to a higher court.
Key Takeaways for Employers
Ensure your whistleblowing procedures are reviewed and updated to comply with the Amendment Act provisions.
Employers with no whistleblowing procedures in place and greater than 250 employees should take steps to put one in, and employers with 50-250 fewer employees should aim likewise to make such preparations by December 2023.
Whilst employers with less than 50 employees are not required to have whistleblowing procedures in place, it is recommended that they have a local policy in place to ensure that such protected disclosures can be appropriately dealt with.
Employers should be mindful that certain employee grievances could amount to a protected disclosure and that protected disclosures do not necessarily have to be made in writing but can be made verbally instead.
Finally, employees who make a protected disclosure must not face any retaliation due to raising such a concern.
What are the main dates and deadlines employers must be aware of regarding the Protected Disclosures (Amendment) Act 2022?
The Protected Disclosures (Amendment) Act 2022 commenced on the 1st of January, 2023.
The Protected Disclosures (Amendment) Act 2022 will not come into effect for employers with between 50 and 249 employees until the 17th of December, 2023.
A receipt regarding the protected disclosures must be issued within seven days.
A report regarding the protected disclosures must be issued within three months of receipt.
Feedback on actions taken must also be issued within three months of receipt.
Employment Solicitor at Alastair Purdy & Co Solicitors