On 12 October 2022, the then Minister for Public Expenditure and Reform, Michael McGrath, signed the Commencement Order for the Protected Disclosures (Amendment) Act 2022 (the "2022 Act") which took effect on 1 January 2023. This 2022 Act transposes the EU Whistleblowing Directive and amends the existing Irish framework for the protection of whistleblowers under the Protected Disclosures Act 2014 (the ”2014 Act”).
Categories of Affected Employers
The 2022 Act introduces a new obligation for certain employers to have a whistleblowing procedure, together with significant detail on the content of such procedures. The 2022 Act applies to:
All public sector employers;
Any employer with 250 or more employees (from the date of commencement of the Act);
Any employer with 50 or more employees (only from 17 December 2023); and
All employers who fall within the scope of certain EU law provisions referred to in the Directive (from the date of commencement of the Act), which includes employers in the areas of financial services, products and markets, product safety and compliance, transport safety and protection of the environment, food safety, animal safety and welfare and public health.
Employers will be required to establish and operate anonymous internal reporting channels. Employers will be required to designate an impartial person to follow up on reports. The designated person will be tasked with maintaining communication with the reporting person.
Definition of 'Worker'
The 2022 Act extends the scope of persons who are protected under the 2014 Act, by extending the definition of ‘worker’. ‘Worker’ now includes shareholders, volunteers, trainees, members of the administrative, management or supervisory body of an undertaking (e.g., board members) and those who acquire information during a recruitment or other pre-contractual process (e.g., job applications).
The Burden of Proof
Currently, under the 2014 Act, the burden of proof rests with the worker alleging penalisation for making a protected disclosure. The 2022 Act provides that the employer will have to discharge the burden of proof in respect of penalisation. In other words, penalisation under the 2022 Act, will be deemed to have occurred as a result of making the protected disclosure unless the employer can prove the act or omission complained of was justified.
The 2022 Act provides for very substantial fines (ranging between €75,000 and €250,000 for conviction on indictment) and the possibility of a term of imprisonment not exceeding two years for employers who are found to have committed a criminal offence.
Key Steps for Employers in advance of or from 1 January 2023
- Ensure appropriate whistleblowing procedures are in place in accordance with the 2022 Act. The procedure must ensure employees have an internal reporting channel. A well drafted procedure may well assist in reducing risk of successful legal claims for victimisation.
- Confirm if you are an employer to whom the additional obligations concerning procedures contained in the 2022 Act applies. In the private sector, this will largely depend on the analysis of the type of work and / or number of employees.
- If designating one or more staff member as responsible for receiving protected disclosures, specific training on the handling of protected disclosures will be required. Employers will need to carefully consider the most suitable individuals. For instance, individuals in management positions or certain reporting lines could be conflicted.
- In the public sector, whistleblowing procedures must be amended to comply with the 2022 Act.
How Holmes Can Help Your Business
Our team of legal experts at Holmes can provide you with guidance on the implementation of the Protected Disclosures (Amendment) Act 2022.
Get in touch with our Employment, Pensions and Benefits team today.
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