Protected Disclosures - Ireland

Important Notice

Readers attention is drawn to the new statutory guidance for public bodies issued by the Minister for Public Expenditure, NDP Delivery and Reform on 20^th November 2023 which supersedes the interim guidance referred to below .Any references to the interim guidance below must be read in the light of this .References to interim guidance will shortly be replaced as appropriate  by references to statutory guidance .

Legislation

Irish legislation on whistleblowing comprises mainly the Protected Disclosures Act 2014 (“2014 Act”) and the Protected Disclosures (Amendment ) Act 2022  (“2022 Act”).

Information on the 2014 Act including a statutory review in 2018 can be found here on the Dept. of Public Expenditure and Reform webpage Protected Disclosures Act: Information for Citizens and Public Bodies.

The 2022 Act was signed into law on 21 July 2022.  See here for explanatory memorandum to the 2022 Act. The Protected Disclosures (Amendment) Act 2022 (Commencement) Order 2022 was signed on 6 October 2022 and  the provisions of the 2022 Act came into force on 1 January 2023. References on these pages to the Protected Disclosures Act 2014 (as amended ) means the 2014 Act as amended by the Protected Disclosures (Amendment ) Act 2022.

Readers can now access a very useful administrative consolidation of the Protected Disclosures Act 2014 produced by the Irish Law Reform Commission (LRC) and updated to 1 January 2023, incorporating all the Protected Disclosures (Amendment) Act 2022 amendments. The consolidation can be found on the LRC website at the above link.

The 2022 Act  gives effect to Directive EU 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the “Whistleblowing Directive”) and  broadens the scope of the protected disclosures regime.

The Whistleblowing Directive aims to provide broad protection to those who report wrongdoing and to create channels for these reports to be made, with adequate protection of the rights and freedoms of whistleblowers.

Guidance-Department of Public Expenditure, NDP Delivery and Reform (DPER ) 

Please click here to go to the  DPER webpage which has information for citizens and public bodies on protected disclosures. There  you will find resources including the following  booklets "Protected Disclosures Act :Key messages for employers" , Protected Disclosures Act: Key messages  for Prescribed Persons  and “Protected Disclosures Act Key messages for workers”.

In November 2022 DPER issued interim guidance for public bodies and prescribed persons on the Protected Disclosures Act .("DPER Interim Guidance") and on 20 November 2023 the Minister for Public Expenditure, NDP Delivery and Reform issued statutory guidance for public bodies on the Protected Disclosures Act 2014. Click here for the press release when the statutory guidance was issued. It supersedes the Interim Guidance.

The Minister also issued two templates one for internal and one for external protected disclosures policies for use by public bodies and prescribed persons. The templates are available at the end of the webpage of the Department of Public Expenditure, NDP Delivery and Reform “Protected Disclosures Act: Information for Citizens and Public Bodies” which has been updated as of 20 November 2023.

The Minister in his press release on the statutory guidance said that while it is targeted at the public sector much of the content is also applicable to the private sector and he expressed the hope that private sector organisations would also find the guidance useful.

Relevant  information, relevant wrongdoing, breach

A protected disclosure is a disclosure of “relevant information” made by a “worker”. Section 5 of the 2014 Act (as amended ) provides that information is relevant information if, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings and it came to the worker’s attention in a work-related context.

Relevant wrongdoing has been expanded with the passing of the 2022 Act and includes a situation where a “breach” has occurred, is occurring or is likely to occur.

Readers should note that there is now a definition of “breach” in the 2022 Act and examples include an unlawful act or omission in certain of the areas set out in the Whistleblowing Directive. For example, public procurement, financial services or prevention of money laundering. Readers should refer to the 2014  Act (as amended) and the Whistleblowing Directive for full details of what a breach is.

Under section 5(5) of the 2014 Act (as amended), a disclosure is not covered by the legislation if it is the function of the individual making the disclosure (or the employing entity) to detect, investigate or prosecute the subject matter of the disclosure and does not consist of or involve an act or omission on the part of the employer. Thus depending on the circumstances, workers in compliance roles may not attract protection under the 2014 Act (as amended). See further at section 7.6.2 of the DPER Interim Guidance for some examples.

Interpersonal grievances

Section 5A of the 2022 Act excludes interpersonal grievances from the protections in the legislation. It provides that a matter exclusively  affecting the reporting person concerning a personal employment grievance is not a protected disclosure and may be dealt with by other available grievance or complaints procedures. Prior to the 2022 Act, the Irish supreme court had interpreted the 2014 Act as capable of extending to complaints made in the context of employment matters which are personal to the whistle blower. Click here for an interesting article by McCann Fitzgerald LLP in 2021 on the Significant Supreme Court Decision on the Scope of Whistleblower Protection.

Readers should refer to the DPER Interim Guidance referred to above on this (in particular section 7.6) as it contains some guidance on grievance and dignity at work procedures including how to deal with inter personal grievances.

What does "protected" mean? What is penalisation?

There are two main strands of protection:

Unfair dismissal

The 2014 Act (as amended ) amends the Unfair Dismissals Act 1977 and provides that a dismissal of an employee is deemed to be automatically unfair for making a protected disclosure irrespective of whether or not the employee has one year’s continuous service. The ceiling of 104 weeks compensation for dismissal does not apply and the ceiling for compensation for dismissal for making a protected disclosure is 260 weeks. Compensation can be reduced by up to 25% if the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure.

Penalisation

The other strand is that the legislation protects employees from penalisation. It provides that an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. Penalisation is defined in the Protected Disclosures Act 2014 (as amended). The definition was significantly expanded by the Whistleblowing Directive and the 2022 Act.

Complaints about penalisation are made to the Director General of the Workplace Relations Commission (WRA)  and complaints generally must be presented within six months from the date of the contravention to which the complaint relates though certain extensions are permitted under the workplace relations legislation. Since the 2022 Act there is a rebuttable presumption in proceedings under WRA legislation, that a penalisation is as a result of the employee having made a protected disclosure.

There is  a cap on compensation by the Workplace Relations Commission of 260 weeks (5 years) remuneration in the case of employees and since the 2022 Act a cap of €15,000 in respect of  any person not in receipt of remuneration from the person they are in the work-based relationship with such as a volunteer. Again ,compensation can be reduced by up to 25% where investigation of the wrongdoing is not the main motivation for making the disclosure. Since the 2022 Act, an application can be made (within time limits set out in the section) to the Circuit Court for interim relief against penalisation other  than dismissal.

These pages are provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.