This year new protections were brought in to protect whistleblowers in Ireland. The protections enhanced the Protected Disclosures Act 2014; the new Protected Disclosures (Amendment Act) 2022 gives legal effect to the EU Whistleblowing Directive in Irish law. 

What are the Laws Covering Whistleblowing? 

Whistleblowing was previously known as making a ‘protected disclosure.’

The law protects workers in the public, private, and not-for-profit sectors who report concerns about wrongdoing in their workplace. They can disclose internally or to a third party, and the law protects them from retaliation, which means they should not be mistreated or lose their job because of the information they have reported.

Whistleblowers also have the right to anonymity. Generally, anyone who receives a protected disclosure must protect the person’s identity and any identifying information about them unless given consent. This also extends to anyone who later interacts or deals with the whistleblower. 

There are exceptions if the whistleblower’s identity is essential to the subsequent investigation. 

What is a Protected Disclosure?

A protected disclosure is a qualifying disclosure made by a worker who reasonably believes their workplace engaged in serious wrongdoing. Typically, this will relate to dangerous or illegal activity witnessed at work.

The Irish Government defines a protected disclosure as “a disclosure of information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoing and comes to the worker’s attention in a work-related context.”

The disclosures covered by the Act include:

• Unlawful or improper use of public funds or resources.
• Financial misconduct or fraud.
• Corruption, bribery, or blackmail.
• Failure to comply with any legal obligation other than one arising under the worker’s employment contract or other agreements whereby the worker undertakes to do or perform any work or services personally.
• Endangerment of the health and safety of any individual.
• Damage to the environment.
• The commission of an offence.
• Miscarriage of justice.
• Gross negligence or gross mismanagement by public bodies.
• The concealment or destruction of information relating to any of the above.

The Act does not cover disputes over contracts, complaints, or personal grievances, which should be dealt with under the dignity at work procedure. Workers are also not protected if they are found to be intentionally disclosing false information, they must have a reasonable belief in the information, or they would become liable to prosecution under the Act. 

Who is Protected?

The Act protects anyone who could have witnessed relevant wrongdoing in the workplace in a work-related context. This includes: 

• Employees. 
• Contractors, including independent contractors.
• Freelancers.
• Agency workers.
• People on work experience and volunteers.
• Trainees – both paid and unpaid.
• Board members.
• Shareholders.
• Job applicants.
• Former employees.
• Retired staff members.

An important exception is that the Act does not protect legal advisors in situations where legal professional privilege could be maintained. 

How Can Employees Disclose Whistleblowing Information?

There are three recognised ways of reporting a protected disclosure. These are:

1. Disclosing Directly to the Employer

This is the simplest way of reporting a protected disclosure. It can be done in person or writing. The employee must show a reasonable belief that wrongdoing is occurring.

2. Reporting to a Prescribed Person

As part of the Protected Disclosures Act 2014, a list of prescribed persons was created to provide employees with an option to disclose to an independent body outside their organisation. This may be necessary if they do not disclose directly to their employer or escalate their concerns if they feel ignored.

A list of prescribed persons can be found on the Irish government’s website. Each person on the list has a specific remit for wrongdoings that they can receive, which is also on the website. Generally, the report must be made to the regulatory function that it is subject of the disclosure. For example, a breach of data protection law must be reported to the Data Protection Commission.

Protected disclosures to prescribed persons require a higher standard of proof than those made to employers. The whistleblower must also reasonably believe the disclosure is relevant to the prescribed person.

3. Disclosing Externally

There are three other channels available to whistleblowers wanting to make protected disclosures. These are:

Lawyers

If the whistleblower feels they need legal advice, they can make a protected disclosure to a solicitor, barrister, or trade union official.

The Office of the Protected Disclosures Commissioner

The Office of the Protected Disclosures Commissioner was established as part of the Protected Disclosures (Amendment Act) 2022 and was made available as a means of disclosing on 1st January 2023. Whistleblowers who don’t know who to contact are encouraged to use this channel to make a report. 

Through its website, they can report protected disclosures directly to the Office of the Protected Disclosures Commissioner. The office will then assign the report to a relevant prescribed person or another suitable person. Where no appropriate person can be found, the Commissioner will investigate the report directly.

Relevant Ministers

Public body employees can also report protected disclosures to government ministers, providing certain conditions have been met.

1. The whistleblower has previously reported a protected disclosure to their employer of a prescribed person and either:

• No feedback was provided. 
• There was no adequate follow-up.
• They believe the head of the public body is complicit.

2. The whistleblower believes the wrongdoing represents a clear and present danger to public health or will cause an emergency situation where the damage could be irreversible.

In these circumstances, the minister receiving the protected disclosure must send it to the Protected Disclosures Commissioner. A relevant prescribed person will then be assigned to deal with the case.

Other Appropriate External Persons

This category usually applies to reports made to journalists. These can sometimes be considered protected disclosers, providing the whistleblower has a reasonable belief the disclosure is substantially true and one of the following conditions are met:

• The disclosure was previously made using one of the other appropriate channels, and no action was taken.
• There is a reasonable belief of imminent danger to the public interest.
• The whistleblower believes there is a risk of penalisation if they were to go through another channel. 
• There is a reasonable belief that evidence might be concealed or destroyed if the report was made through another channel.

How to Deal With a Report

The Protected Disclosures (Amendment Act) 2022 brought new report handling guidance. These vary depending on who the protected disclosure was made to and are applicable from 1st January 2023. 

There is an exception for private and charity sector employers with between 50 and 249 employees who operate outside of the financial services, products, and markets and prevention of money laundering and terrorist financing, transport safety, and environmental protection industries. These organisations must have adopted the new guidance by 17th December 2023.

Reports to Employers

Employers are now required to have the following in place:

• A clear and accessible procedure for employees to make disclosures.
• A process for protected disclosures that ensures the whistleblower’s identity stays anonymous.
• A designated person to deal with protected disclosures.
• A strict timeline for dealing with the report includes the following:
  • Acknowledgement within seven days.
  • Appropriate investigation and follow-up.
  • Feedback within three months.

Reports to Prescribed Persons

Prescribed persons are required to provide whistleblowers with the following:

• Acknowledgement within seven days.
• Appropriate investigation and follow-up.
• Feedback within three months (this can be increased to 6 months in certain circumstances).
• Information on the outcome. 

Reports to the Office of the Protected Disclosures Commissioner

The Office of the Protected Disclosures Commissioner is required to provide the whistleblower with:

• Acknowledgement within seven days.
• A prescribed person or another suitable individual to investigate the disclosure within 14 days.
• Appropriate investigation and follow-up.
• Feedback within three months (this can be increased to 6 months in certain circumstances).
• Information on the outcome.