On 1 January 2023, significant changes to Irish whistleblowing law will be introduced. The Protected Disclosures (Amendment) Act 2022, which implements the EU Whistleblowing Directive and amends the original Protected Disclosures Act 2014, will widen the scope of protections for whistleblowers and mandate extra rigour for whistleblowing policy.
Before this key date, it is imperative to ensure your whistleblowing policy is up to date and compliant with the new regulatory measures.
Are you prepared for the changes? Have you considered whether external whistleblowing services can help with compliance?
Broadening definitions in the Amendment Act:
Before looking at the changes the regulation demands to whistleblowing policy, it is important to be aware that the scope of how the Act defines certain key terms has been widened.
Worker – this now includes:
- members of the board of directors
- shareholders of relevant firms
- unpaid interns and trainees
- individuals make a disclosure regarding a relevant wrongdoing during a recruitment process or pre-contractual negotiations.
Relevant wrongdoing - scope has been increased to now include breaches of financial service legislation, including:
- Undertakings for Collective Investment in Transferable Securities Directive
- Alternative Investment Fund Managers Regulations
- MiFID Directive
- Packaged Retail and Insurance-Based Investment Products Regulation
- Market Abuse Regulation and the Benchmarks Regulation.
It also includes any breaches of GDPR and the Money Laundering and Counter Terrorist Financing Directive
Penalisation – the Act seeks to protect workers further, broadening what is defined as penalisation against those who make disclosures:
- Withholding a promotion from a worker
- Negative performance reviews or employment references
- Failure to make permanent a temporary employment contract
- Harming a worker's reputation or blacklisting within an industry or sector
For their whistleblowing policy to be compliant, firms must:
- Establish a secure and confidential reporting channel – offering both oral and written means of disclosure. (Whistleblowing hotline)
- Designate an impartial and competent party, responsible for the communication process with anyone making a protected disclosure. They must also be able to assess/investigate the alleged wrongdoing; and recommend appropriate action against the culpable party. (Investigation)
- Ensure workers are aware of the whistleblowing avenues available to them to make protected disclosures. (Training)
Which companies will this affect?
Effective from January 1 2023, certain employers will have to make sure their whistleblowing system and whistle blower policy are compliant with the amended regulation.
- Employers who are subject to EU law which is listed in Schedule II of the Amendment Act
- public sector employers.
- employers with at least 250 employees
Employers of at least 50 but less than 250 employees will be subject to these requirements from 17 December 2023.
Implement a trusted whistleblowing hotline - Protecting whistleblowers begins at the point of making a report. The Protected Disclosures (Amendment) Act 2022 demands that workers are able to make disclosures confidentially. Only through utilising an anonymous employee hotline can this be guaranteed.
Independent whistleblowing service providers, such as Safecall, ensure employees have a defined anonymous avenue to report misconduct. It enables your employees, contractors and suppliers to report issues relating to their working environment in a safe and secure way via phone and web.
Ensure processes are effective and impartial – The regulation now insists that firms utilise an 'impartial and competent' party to facilitate the whistleblowing process. By using the case management and investigation services offered by specialised external providers, this competence and impartiality is ensured.
Our investigators are all ex police officers (often senior investigating officer level) with significant operational experience. Depending on the requirements, we would allocate individuals with the appropriate skill set to match the specific nature of the work. Using an external provider demonstrates unparalleled commitment to impartiality and competence and helps your whistleblowing policy be even more robust.
If you wish to handle these investigations internally, whistleblowing training for managers is absolutely essential. Whistleblowing is often such a unique situation that untrained whistleblowing reporting managers can feel like they're outside of their comfort zone. Bespoke training sessions fit for your workers help you avoid the fallout of non-compliance with the new regulatory measures.
Train your employees and raise awareness - The Protected Disclosures (Amendment) Act 2022 states that workers must be aware of their employer's whistleblowing policy and the avenues available to them to make a disclosure. Educating your workers on their whistleblower rights and protections helps cultivate a culture of openness, transparency, integrity and accountability
YouGov research highlights that UK workers – 76% – want to see all employers have whistleblowing standards in place.
However, 69% of workers did not know how to raise a whistleblowing concern at their place of work.
Whistleblowing training for employees is necessary to encourage the prevention and mitigation of wrongdoing in the workplace, and for regulatory compliance.
Looking to start your whistleblowing service journey?
Implementing a clear whistleblowing policy encourages a culture where concerns are raised early. This makes it easier for employers to address concerns and potentially prevent serious wrongdoing and reputational damage before being reported to regulatory bodies or the press.
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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.