Almost a year on from the Protected Disclosure (Amendment) Act, 2022 it is a good time to review the key things employers need to take note of.
Introduction
Under The Protected Disclosures (Amendment) Act 2022, those who make protected disclosures (sometimes referred to as “whistle-blowers”) are protected by law, meaning they should not be penalised (punished) either directly or indirectly because they have made a protected disclosure.
Who does the Act protect?
It is important to note that this legislation applies not only to employees but also to trainees and to those who are no longer employed I.e. former employees or those who were never directly employed by your business including; people working under a contract for services, independent contractors, agency workers, board members and shareholders.
In addition, some employers may not be aware that volunteers, people on work experience and Job applicants are all covered when making a protected disclosure or “whistleblowing”.
What constitutes a Protected Disclosure?
The legislation refers to a Protected Disclosure as the reporting of a “relevant wrongdoing” which includes; criminal offences, failure to comply with legal obligations, breaches of certain European union law, endangering the health and safety of individuals, damaging the environment, miscarriage of justice, misuse of public funds, oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body,
As well as that, concealment, or destruction of information about any of the above wrongdoings or any attempt to conceal or destroy such information, is also prohibited under the Act.
Does the protected disclosure have to take place in Ireland?
The “relevant wrongdoing” does not have to take place within this jurisdiction, it can take place in Ireland or outside of Ireland.
What if the information is incorrect?
Even if the information is proved to be incorrect, the “whistleblower” is still protected, provided they reasonably believe the information is correct at the time of the disclosure.
What is not deemed a protected disclosure?
Generally speaking, the following are not considered to be protected disclosures; workplace grievances that are exclusively personal; disputes regarding a contract or terms and conditions of employment; information that is disclosed in a legally privileged setting (i.e., with a solicitor); information which it is the employees’ job to detect (i.e., where an employee is perhaps employed to conduct risk assessments).
Does my organisation have to set up a policy for Protected Disclosures?
Currently, if your business employs 250 or more employees, they should already have in place internal channels for their workers to report wrongdoing.
However, from the 17 December 2023 this requirement is expected to apply to all organisations with 50 or more employees.
There are certain industries such as financial services, and public sector that must establish internal channels regardless of size.
What employers need to consider in setting up or reviewing protected disclosures policies?
Your reporting procedures need to be kept secure and GDPR compliant.
You must assign a person or function to be responsible for handling Protected Disclosures, who will maintain communication with the reporting person, follow-up on the report and provide feedback to the reporting person.
Those responsible should have sufficient independence and authority within the organisation to carry out these functions. They should be adequately trained in the handling of reports.
Do I need to make staff aware of the Protected Disclosures Policy?
You must ensure workers have access to the Protected Disclosures procedures
Organisations can outsource the internal channel function, if they wish.
What must my Protected Disclosure procedures include?
Employers should ensure that their policies now reflect the additional requirements of the Amended Act.
In particular, the procedure should;
Penalties
Businesses could face compensation awards, of up to 5 years pay from the Workplace Relations Commission (WRC), where a whistle-blower is found to have been 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 make an award of up to €15,000 to these individuals.
Conclusion
Protected Disclosures is a complex and difficult piece of legislation and from December employers with more that 50 employees will need to be compliant with the legislation.
Vigilant employers will need to be aware of their obligations in relation to internal reporting and create channels for the making of protected disclosures.
MSS is available to advise and assist any organisation in dealing with a potential protected disclosure or with setting up a policy and internal process.
