On the 12 October 2022, the Minister for Public Expenditure and Reform, Michael McGrath, signed the Commencement Order for the Protected Disclosures Amendment Act (the "2022 Act") which will take effect in its entirety from 1st January 2023. David McCarroll, Partner with RDJ's Employment Team, takes an in depth look at the obligations now arising for employers and what preparations need to be made.

The Original 2014 Act

Back in 2014, following on from a range of national scandals and public enquiries, the government introduced a landmark piece of legislation in the form of the Protected Disclosures Act (the "2014 Act"). The underlying purpose of the 2014 Act was to protect "workers" who had made "protected disclosures" from acts of "penalisation" by their employer. The legal threshold for a worker to be able avail of these protections varies depending on whether the disclosure is made internally to their employer, to a prescribed external body, to a Minister, to a legal advisor or to another person.

The 2014 Act provided for a number of very significant protections for employees. Those have now been enhanced further by the new 2022 Act. The chief remedies available are as follows:

  • A claim under the Unfair Dismissals Act (the "UD Act") taken in the usual manner to the Workplace Relations Commission and on appeal to the Labour Court. The UD Act was duly amended by the 2014 Act so that a dismissal of an employee for having made a protected disclosure was now deemed to be an automatically unfair dismissal, and that cause of action is a "day one right", i.e. open to an employee without the requirement for the employee to have 52 weeks' service. In terms of remedies, an employer can be required to take a specified course of action. In addition, the standard maximum compensation order available under the UD Act, being compensation for financial losses up to the sum of 2 years' remuneration, is increased to 5 years' remuneration (with the mechanism to reduce same by up to 25% where investigation of the relevant wrongdoing concerned was not the sole or main motivation for a disclosure being made). Obviously, it is also the case that such claims are now undertaken in the context of an open, public hearing with the parties named in any determination.

Now, under the 2022 Act, the burden of proof for such cases shall be reversed and so, similar to an equality claim, it will be for the employer to demonstrate that the allegedly penalising acts or omissions were in fact based on duly justified grounds. Also, under the 2022 Act the 25% reduction of the maximum 5 year award can now also be applied where the worker has been found to knowingly report false information.

  • An interim application under Schedule 1 of the 2014 Act, which is made by the employee to the Circuit Court and is akin to a form of low threshold injunction where the employee can seek to procure an order from the Circuit Court against their employer preventing/reversing their dismissal and keeping them on full pay until any claim under the UD Act is disposed of. Remember, that can be a very significant period of time given that such claims are by their nature complex and lengthy and could be the subject of a WRC hearing, a Labour Court appeal and even an appeal thereafter on a point of law.

Now, under the 2022 Act, a worker can also apply for interim relief from the Circuit Court in respect of not just dismissals but the much wider list of acts and omissions that are defined as penalisation (see below). That very significantly widens the immediate litigation threat for employers.

  • A distinct cause of action in tort where a person has suffered detriment because they or another made a protected disclosure. That action is taken against the party who caused the detriment. The detriment includes certain set treatment such as coercion, intimidation, harassment, discrimination, adverse treatment, injury damage loss or threats of reprisal. Again, under the 2022 Act, the burden of proof for this type of case is also now reversed and it will be for the employer to demonstrate that the allegedly penalising acts or omissions were in fact based on duly justified grounds.
  • In addition, there are protections around the provision of an immunity for a whistleblowers in civil proceedings (other than a defamation action).

The remedies provided by the 2014 Act, as now enhanced by the 2022 Act, have real legal "teeth" and the public nature of a whistleblowing related action can add to the concern employers have around such potential claims. The number of claims actually taken to the WRC itself has been relatively modest (being 60 - 80 cases in each of the last four reported years). However, the initial threat of such a claim is now by now means an uncommon occurrence within for example a contested redundancy or performance dismissal scenario. Whilst the 2014 Act only obliged public bodies (but not private enterprises) to establish and maintain a Protected Disclosures Procedure, many private sector employers did indeed put such a procedure in place and those policies will now need to all be updated to reflect changes that are set to take effect on the 1st January 2023.

Other Changes rising From the 2022 Act

Subsequent to the 2014 Act, Ireland has now had cause to update its framework of whistleblowing protections on foot of the transposing of an EU Directive (2019/1937) on the protection of persons who report breaches of European Union law. Hence the passing of the 2022 Act and its commencement on the 1st January 2023. The delay in commencement may have arisen to facilitate the establishment of a new body established under the 2022 Act called the Protected Disclosures Commissioner, who will be able to receive and redirect protected disclosures as appropriate.

There are a range of very significant changes to the 2014 Act introduced by the 2022 Act, which are summarised within the comparison table below:

Existing Position Under 2014 Act

Amended Position upon commencement of the 2022 Act

Who can claim protection?

The 2014 Act applies to "Workers", which was defined in a very broad manner and would include full time, part time, temporary employees, contractors, consultants, agency staff, former employees, apprentices and those on work experience

The 2022 Act significantly extends out the protection to now also include shareholders, directors (or members of other administrative, management or supervisory bodies) volunteers, job applicants or those involved in pre-contract negotiations.

What constitutes "Penalisation"?

Under the 2014 Act "penalisation" had already been given a very wide definition to include:

  • suspension, lay-off or dismissal,
  • demotion or loss of opportunity for promotion
  • transfer of duties, change of location of place of work, reduction in wages or change in working hours
  • the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty)
  • unfair treatment, coercion, intimidation or harassment
  • discrimination, disadvantage or unfair treatment
  • injury, damage or loss, and threat of reprisal

Now under the 2022 Act, the term is extended further to include:

  • withholding of promotion
  • ostracism
  • withholding of training
  • negative performance assessment or employment reference
  • failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment
  • failure to renew or early termination of a temporary employment contract
  • harm, including to the worker's reputation, particularly in social media, or financial loss, including loss of business and loss of income
  • blacklisting within a sector
  • early termination or cancellation of a contract for goods or services
  • cancellation of a licence/permit
  • psychiatric or medical referrals

What is deemed a protected disclosure?

Under the 2014 Act a "protected disclosure" is a disclosure of "relevant information" which came to the attention of the worker in connection with their employment, which in the reasonable belief of the worker, tends to show one or more "relevant wrongdoings".

The term "relevant wrongdoings" is specifically defined to include only certain matters:

  • Where an offence has been or is likely to be committed
  • Non-compliance with a legal obligation - with the 2014 Act excluding obligations arising under the worker's contract of employment
  • A miscarriage of justice
  • Danger to the health and safety of any individual
  • Damage to the environment
  • An unlawful or otherwise improper use of funds or resources of a public body
  • Oppression, gross neglect or gross mismanagement by a public body
  • Concealment or destruction of information relating to any of the foregoing

The 2022 Act adds a range of additional relevant wrongdoings, as well as making some important changes to the existing matters covered.

It adds to the list of relevant wrongdoings the occurrence (or likely occurrence) of a breach of a whole range of obligations arising under EU law where they effect the financial interests of the EU and relate to the internal market, EU competition and state aid rules and internal market rules on corporate tax.

These new provisions bring a wide range of European law areas into the scope of the 2104 Act including public procurement, financial services/anti money laundering, product safety and compliance, transport safety, environmental protection, radiation and nuclear safety, food and animal health and welfare, public health, consumer protection and the protection of privacy and personal data.

What about "interpersonal grievances" between workers?

The 2014 Act had sought to limit its scope so as to exclude non-compliance with obligations arising out of a workers contract of employment.

However, that exclusion has been very narrowly interpreted by the Courts so as to still include grievances that may be personal to the employee but still amount to protected disclosures, such as complaints about the impact of work practices on the individual employee's health and safety (see the 2021 Supreme Court case of Baranya v Rosderra Meats). The concern for employers was that this might further expand out the types of complaints that could come within the scope and protection of the 2014 Act to include interpersonal grievances - such as a bullying complaint.

The 2022 Act does now contain a clearer exclusion of interpersonal grievances where they exclusively affect the worker making the complaint and they relate to interpersonal conflicts between them and another worker. It further provides that these types of complaints may be properly dealt with through existing grievance or dignity at work procedures in place.

Anonymous Disclosures?

It is not unusual for disclosures to be made through for example the anonymous delivery of incriminating video footage or documentation to an employer. The 2022 Act provides that an employer is not obliged to follow up on an anonymous disclosure made but may if they consider it appropriate to do so.

Who Now Needs to Have a Protected Disclosure Policy and How Must it Operate?

Under the 2014 Act, only public bodies were required to put in place and maintain a protected disclosure policy. They are also required to report annually on the number of disclosures made and the nature of any action taken in response to the disclosure.

Under the 2022 Act, there will be wider obligations across the private sector to both put in place a channel for receiving disclosures and a procedure for progressing them. As part of the process, there is a very tight 7 day timeline for acknowledging the disclosure in writing, a requirement to assign it to a designated impartial person. That person must maintain communication with the complainant (including seeking additional information or data) and they must carry out an initial assessment and close out the process, communicating the basis for any decision reached and where necessary taking appropriate action to address the matter. Feedback is to be provided to the complainant within a short 3 month timeframe (extendable to 6 month for complex matters). There are also reporting requirements in terms of the

Employers with over 250 employees will need to have such a policy and process in place for the 1st January 2023.

Certain sectoral employers (such a most financial services entities) who fall within the existing scope of EU provisions will need to also have a policy and process in place for the 1st January 2023.

Employers with over 50 employees will need to have such a policy in place for the 17th December 2023.

Criminal Sanctions

It is important to note that the 2022 Act now also creates a range of criminal offences and penalties. They cover scenarios such as hindering the making of a protected disclosure as well as creating a criminal offence in respect of the very act of penalising a worker for making a protected disclosure, including for example the bringing of vexatious proceedings against the reporting worker. Depending on the particular offence, there are a range of very hefty potential fines, with the different maximum levels set depending on the offence committed at anything up to ?75,000, ?100,000 or in some cases ?250,000. A conviction of a body corporate can even result in potential imprisonment for an offending director, manager, secretary or other officer for up to 12 months upon summary conviction or up to 2 years upon indictment. On the flip side, it shall also now be an offence for a worker to make a protected disclosure which contains information that they know to be false.

Action Items

Given the extent of the changes that shall now take effect on the 1st January 2023, employers need to review their existing policies and procedures to ensure that any protected disclosures can be properly channelled and progressed in line with the new measures.

  • For those with 250 employees or more (and those impacted already under the EU Directive), that review needs to be completed now to ensure compliance by the 1st January 2023.
  • For those with less that 250 but more than 50 employees, that process needs to be completed by the 17th December 2023.

Consideration needs to be given to the appointment of designated impartial person(s) and those persons will need to be trained to enable them to undertake that role.

Wider awareness for line managers as to how to address, handle and channel disclosures 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 or meeting note and to retrospectively ascribe to it the status 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 challenging and developing area of law for employers and it will certainly pay to be ready and able to address disclosures in a manner compliant with legal obligations, rather than face the very much expanded risk of litigation that will arise where a disclosure in wrongly handled and penalisation may be claimed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.