By Company Bureau Formations, 31st May 2023 (Updated 28th November 2023)
Why is the Protected Disclosure (Amendment) Act 2022 (“the Act”) relevant to my business? As an employer, the responsibility falls upon you to ensure you effectively address disclosures of misconduct, aligning with the Act. Employees are now afforded greater protection in reporting unlawful or immoral conduct at work through more rigid internal reporting channels, that maintain the confidentiality of the identity of the reporting person.
Additional protection has been awarded to Whistleblowers through the signing of the Protected Disclosure (Amendment) Act 2022 into law on 21st July 2022 by President Michael Higgins. Whistle-blowers, a term used to describe individuals who report wrongdoing, are fundamental to the upkeep of public interest. This legislative development will aid the transposition of the EU Whistle-blowing Directive 2019/1937 on the protection of individuals who report breaches of European Union Law.
Through the amendment of the Protected Disclosures Act 2014, the list of ‘breaches’ that satisfy the criteria for protected disclosures has been expanded to include violations of applicable laws governing;
- Financial services
- Products and markets
- Prevention of money laundering and terrorist financing – such as accountants, solicitors, trust or company service providers (TCSPs), etc.
- Data and personal privacy
- Corporate tax rules including the General Anti-Avoidance Rule (GAAR)
- Protection of the environment.
The Protected Disclosure (Amendment) Act 2022 has expanded its scope to protect volunteers, shareholders, board members, and first-time job applicants. It also places an obligation on private sector organisations employing 50+ people to provide adequate reporting procedures, alike the public sector, by the 17th of December 2023. Employers and prescribed individuals who receive protected disclosures are obligated to acknowledge them, investigate the claims made, and provide feedback to the reporting person within three months. Employers will be required to appoint a ‘designated person’ to maintain communication with the reporting person. Some companies may choose to outsource to an external third party to deal with these reports. The Workplace Relations Commission (‘WRC’) will monitor and enforce these procedures. Upon receipt of a successful protection disclosure, the WRC can award compensation of up to five years of remuneration.
The Office of Protected Disclosures Commissioner, newly established in the Office of the Ombudsman, will divert disclosures to the relevant body. This new body will ensure each report is treated with respect and confidentiality. They will also be responsible for redirecting disclosures sent to the Ministers of the Government to the applicable persons. In determining a complaint, an employee can apply to the Circuit Court to seek an interim order to continue paying.
Statutory Guidance on the Protected Disclosures Act
On the 20th of November 2023, the Minister for Public Expenditure, NDP Delivery, and Reform, Paschal Donohoe, published new Statutory Guidance for public bodies on the Protected Disclosures Act 2014. This guidance is intended to assist public bodies in understanding their obligations under the Act following the amendment of said Act last year.
The guidance provides practical advice on best practices for public bodies in setting up and operating reporting channels for workers to raise concerns about wrongdoing in the workplace. It emphasises the importance of organisational culture, ethics, and integrity in the effective operation of protected disclosure channels.
The updated guidance expands upon the interim guidance released the previous year. It incorporates template policies designed for public bodies to customise and implement in the creation of their internal reporting protocols. Additionally, it provides prescribed persons with templates for developing their external reporting procedures.
Concerns for the employer?
Additionally, several new criminal offences are included in the Protected Disclosure (Amendment) Act 2022 including reporting false information and failing to establish, maintain, and conduct internal reporting channels and procedures – to name but a few.
Key points to note:
- The scope of affected employees/employees has been expanded
- Employers must establish and operate anonymous internal reporting channels
- Duty of the employer to discharge the Burden of Proof in respect of penalisation.
- Introduction of several new criminal offences.
If you have any further questions surrounding the Protected Disclosure (Amendment) Act 2022, please do not hesitate to contact the Company Bureau team. Give us a call at +353(0)1 6461625 or fill out our online contact form.
Disclaimer This article is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Company Bureau for any action taken or not taken in reliance on the information set out in this article. Professional or legal advice should be obtained before taking or refraining from any action as a result of this article. Any and all information is subject to change.