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Protected Disclosures – Action now required for organisations with more than 50 employees

The Protected Disclosures (Amendment) Act 2022 (the “2022 Act”) transformed the legal landscape of protected disclosures, often referred to as ‘whistleblowing’. From 17 December 2023, the 2022 Act significantly expands the scope of the protections for those who make protected disclosures and places new and enhanced obligations on organisations with more than 50 employees to have processes in place to facilitate workers in making protected disclosures.

We outline some of the main aspects of the 2022 Act which differ from and supplement those of its predecessor, the Protected Disclosures Act 2014 (the “2014 Act”). We also consider the steps which organisations should take into account when designing and implementing their protected disclosure channels and processes.

Scope

Previously employees, consultants, contractors, those on work experience and agency workers were protected from being penalised if they made a protected disclosure. The 2022 Act now provides these protections to persons applying for jobs, in pre-contractual negotiations (other than a recruitment process), undergoing training, shareholders, members of boards and volunteers.

Penalisation

The list of actions which could constitute penalisation has been expanded to include:

  • Negative performance assessments
  • Failure to renew a temporary contract
  • Harm to reputation via social media, and
  • Psychiatric or medical referrals

Expansion of the definition of Relevant Wrongdoing

The 2022 Act expands the categories of relevant wrongdoings, effectively the subject matter of the disclosure, previously provided for in the 2014 Act to now include breaches of EU acts such as those on procurement, financial services, consumer protection and protection of the environment.

Internal channels for making reports and procedures for dealing with reports

From 17 December 2023, there will be a requirement for employers with more than 50 employees to facilitate the making of whistleblowing reports with a duty to “establish, maintain and operate internal reporting channels and procedures.” Where an employer has more than 250 employees, this requirement came into effect on 1 January 2023.

Internal reporting channels and procedures under the 2022 Act

What do organisations need to keep in mind when designing a protected disclosure process?

  • They should be designed, established and operated in a secure manner which ensures the confidentiality of the identity of the person making the protected disclosure and any persons referred to in the protected disclosure.
  • There must be an acknowledgement of receipt of the protected disclosure report within 7 days of receipt of it.
  • The nomination of a designated person to communicate, follow up and provide feedback to the reporting person.
  • The designated person carries out an initial assessment to ascertain whether there is evidence of a relevant wrongdoing, and where there is no evidence, the procedure can be closed and the reporting person informed. The reporting person can be referred to another procedure such as the grievance or bullying and harassment procedure.
  • Where there is evidence that a relevant wrongdoing has occurred, appropriate action should be taken to address the wrongdoing.
  • Feedback should be provided to the reporting person within a reasonable time period and not more than 3 months from the date of acknowledgment of receipt of the report, and at subsequent intervals of 3 months if the reporting person requests it.
  • Organisations should provide clear and easily accessible information on the procedures for making protected disclosures.
  • Reports should be capable of being made orally or in writing.

Anonymous reporting

There is no obligation on an employer to accept anonymous reports, however where the employer does accept anonymous reports, and where a worker’s identity subsequently becomes known, the protection against penalisation will extend to them.

Reports that may not be protected disclosures

A matter concerning interpersonal grievances exclusively affecting a reporting person such as a complaint to an employer or about an employer which concerns the worker exclusively is not a relevant wrongdoing for the purposes of the Act. That being said, care should be taken when assessing whether a potential protected disclosure concerns the worker exclusively, or whether the potential protected disclosure refers to information that could apply to other workers. If so, it may then be a relevant wrongdoing for the purposes of the Act.

Penalties

Compensation awards of up to 5 years pay can be made by the 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 make an award of up to €15,000 to these individuals.

Action items for employers

Given the expansion of the scope of the 2022 Act to employers with more than 50 employees, employers need to review their existing policies and procedures now to ensure that any protected disclosures can be properly channelled and progressed in line with the new measures before 17 December 2023. These measures already apply to employers with 250 or more employees.

Employers must appoint a designated impartial person(s) who is trained to enable them to undertake that role.

Wider awareness for line managers as to how to address, handle and channel disclosures also needs to be considered.

Finally, much of the existing body of case law on protected disclosures concern matters that were alleged to have been disclosed verbally, rather than in written form, or indeed they have involved the Court being asked to determine a section of an email of a protected disclosure. As with any informally raised grievance or complaint, employers can significantly mitigate their risk of liability where management staff have been trained to recognise the risk and have properly extended the offer of the appropriate procedure to the worker concerned and the relevant policy can then be invoked.

This is a highly significant piece of legislation which will exponentially expand whistleblowing protections in Ireland. Organisations with more than 50 employees should be cognisant of their obligations in terms of internal reporting channels and procedures under the 2022 Act. Relevant organisations need to put in place channels for the making of reports, for following up on these reports, and providing feedback to the discloser.

For more information, please contact us at reception@vblaw.ie, or your usual contact at Vincent & Beatty LLP.

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2023-09-08T11:13:54+01:00
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