The Protected Disclosures (Amendment) Act 2022 was commenced on 1 January 2023

The Protected Disclosures (Amendment) Act 2022 was commenced on 1 January 2023. Under the new legislation, all private sector organisations with 250 or more employees are required to establish formal reporting channels and procedures for workers to make protected disclosures.

The Bill also places an obligation on all private sector organisations with 50 or more employees to establish these formal channels and procedures for their employees to make protected disclosures. However, organisations with between 50 and 249 employees have until 17 December 2023 to implement these changes.

The 50 and 250 employee thresholds do not apply to employers who are public bodies or who fall within the scope of the certain European Union legislation, including in relation to financial services, products, markets, prevention of money-laundering and terrorist financing, transport safety and protection of the environment. Such employers must comply with the obligations contained in the Act regardless of size.

Under the Act, the new Office of the Protected Disclosures Commissioner also commenced operations on 1 January 2023. The Ombudsman and Information Commissioner, Ger Deering, will be the first Protected Disclosures Commissioner. The Bill was signed into law by the President on 21 July 2022. Therefore, in setting the commencement date of 1 January 2023, the Minister stated he intended on giving employers and the new Commissioner sufficient time to make the necessary arrangements to ensure compliance with the Act.

The Commissioner will receive and redirect to the most suitable authority, protected disclosures made to prescribed persons and to Ministers. The Commissioner will have extensive powers to carry out their duties. They will have the power to require the production of information and/or records, books, documents or other things and to require the attendance of any person for this purpose.

The Bill provides that it is an offence for a person to withhold, destroy, conceal or refuse to provide any information or record, book, document or other thing required, fail or refuse to comply with any requirement of the Commissioner in this regard, or otherwise obstruct or hinder the Commissioner in the performance of his or her functions. A person found guilty of this offence will be liable, on summary conviction, to a class A fine (a fine not exceeding €5,000) or to imprisonment for a term not exceeding 12 months, or both, or, on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 2 years, or both.

The 2022 Act expands the scope of protection by extending the definition of "worker" to include:

  • board members (including non-executive members)
  • shareholders
  • trainees
  • job applicants
  • volunteers

Under the previous legislation, protection was limited to information that came to a worker's attention in connection with the worker's employment.

The definition of 'relevant wrongdoing' has been extended by the 2022 Act. These are the types of wrongdoings about which an individual may make a protected disclosure. A 'breach' is a new relevant wrongdoing for the purposes of the 2022 Act. It is defined as an act or omission that is unlawful and falls within the scope of certain EU acts relating to, amongst other things, financial services, anti-money laundering and terrorist financing (AML/TF), public health and consumer protection. The 2022 Act includes a carve-out which specifically excludes grievances about interpersonal conflicts between the reporting person and another worker or about his/her employer which relate exclusively to the reporting person.

The 2022 Act creates new offences, including, amongst other offences:

  • failing to establish, maintain and operate internal reporting channels and procedures
  • the hindering of, or attempting to hinder, a worker in making a report
  • penalising, or threatening penalisation or causing or permitting any other person to penalise or threaten penalisation
  • breaching the duty of confidentiality regarding the reporting person's identity

Fines ranging between €75,000 - €250,000 and/or imprisonment of up to 2 years are the applicable sanctions in the event of the offences listed above.

Employers who fall within the scope of the scope of the 2022 Act should update their whistleblowing policies and arrange for the establishment of internal reporting channels and procedures to ensure compliance with the 2022 Act, once commenced. 

 

Link to full text of The Protected Disclosures (Amendment) Act 2022

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