Blowing the Whistle: Six Key Recent Changes to Protected Disclosures Legislation that You Need to Know

Stephen Kirwan discusses the Protected Disclosures (Amendment) Act 2022 and outline six key changes to the Protected Disclosures Act 2014.

The Protected Disclosures (Amendment) Act 2022 (herein the 2022 Act) came into operation on 1^st January 2023.[1] The 2022 Act has significantly amended the previous regime for protected disclosures which is set out in the Protected Disclosures Act 2014 (herein the 2014 Act). These changes have significantly altered the legal obligations on various organisations.  The following note is to briefly explore the key changes introduced by the 2022 Act.

1. Expansion of definition of ‘relevant wrongdoing’

Protected disclosures are commonly referred to as “whistleblowing”.

Under Section 5 of the 2014 Act a protected disclosure is broadly defined as:

• the disclosure by a worker of relevant information
• that came to their attention in connection with their employment
• which the worker reasonably believe tends to show one or more ‘relevant wrongdoings’

The main purpose of the legislation is to prevent employees from being penalised by their employer for making a protected disclosure in respect of a relevant wrongdoing.

Under 5(4) 2014 Act further defines ‘Relevant wrongdoings’ to include:

1. The commission of an offence;
2. The failure of a person to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services;
3. A miscarriage of justice;
4. A danger to the health and safety of any individual;
5. Damage to the environment;
6. An unlawful or otherwise improper use of funds or resources of a public body, or of other public money;
7. An act or omission by or on behalf of a public body that is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; or
8. Information tending to show any matter falling within any of the preceding paragraphs (a) to (g) has been, is being, or is likely to be concealed or destroyed.

The 2022 Act makes three key clarifications to the definition of ‘relevant wrongdoings’

1. Addition of EU Law Breaches

   First Section 4 of the 2022 Act amends the 2014 Act to include a number of additional ‘relevant wrongdoings’ now include breaches of EU law in the following areas:

   1. (I)public procurement
   2. (II) financial services, products and markets, and prevention of money laundering and terrorist financing;
   3. (III) product safety and compliance;
   4. (IV) transport safety;
   5. (V) protection of the environment;
   6. (VI) radiation protection and nuclear safety;
   7. (VII) food and feed safety and animal health and welfare;
   8. (VIII) public health;
   9. (IX) consumer protection;
   10. (X) protection of privacy and personal data, and security of network and information systems;
2. Exclusion of interpersonal grievances

   Section 6 of the 2022 Act also seeks to insert a new Section 5A into the 2014 Act. The new section confirms that “interpersonal grievances exclusively affecting the person making the disclosure” are excluded from the scope of the law on protected disclosures. This clarification follows on from the decision of the Supreme Court in Baranya v Rosderra Irish Meats Group Limited[2]where it was confirmed that interpersonal complaints could be considered a protected disclosure under the 2014 Act. The amendments now make clear that such complaints should now be dealt with pursuant to the usual internal grievance procedures that a company has in place.

3. Widening scope of coverage– ‘In Connection with their Employment’ vs ’Work-Related Context’

   Finally, Section 6 2022 Act also amends Section 5(2)(b) of the 2014 Act. Under Section 5(2)(b) 2014 Act the information relied upon needed to have come to a worker’s attention “in connection” with their employment to be considered as a protected disclosure. However due to the relevant amendment this information can now also come to their attention “in a work-related context”. The change in emphasis essentially widens the category of people who will be protected from penalisation to include categories such as volunteers and job applicants.

2. Expansion of definition of what constitutes  ‘penalisation’

As noted, one of the main purposes of the protected disclosures legislation is to prevent the penalisation of those having made a protected disclosure. Section 3 of the 2014 Act originally defined penalisation as including harassment, threat of reprisal, suspension, lay-off, discrimination, dismissal and demotion. Section 4 of the 2022 significantly amends the definition in the 2014 to include an expansive number of areas such as:

• A negative performance assessment or employment reference
• ‘Blacklisting’ of individual
• Psychiatric or medical referrals
• Early termination or cancellation of a contract for goods or services
• Harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income
• Cancellation of a licence or permit, and
• Withholding of training

Section 24 of the 2022 Act which inserts the new section 14A into the 2014 Act  further creates criminal offences for certain breaches of the 2014 Act including threatening with penalisation, hindering or attempting to hinder a person in making a report and breaching the duty of confidentiality without lawful justification. This is a significant departure from the 2014 Act and is a significant protection for those seeking to make a protected disclosure.  As a counter-balance Section 23 2022 Act inserts Section 13A into 2014 Act. This provides that a person who suffers damage from the making of a false report knowingly made has a right of action in tort against a reporting person.

3. Channels and the Procedures for making a disclosure

Chapter 2 of the 2022 Act makes a number of amendments to both the channels and the procedures for making a disclosure envisaged under the 2014 Act. These changes will place significant new obligations on employers in relation to the acknowledgement and follow up of disclosures.  In addition, Chapter 4 also enshrines certain protective principles to be adhered to when dealing with protected disclosures and the investigative process.

In essence employers will be required to establish and operate reporting channels that protect the identity of the person making a report or a disclosure and also provide clear and accessible information as to how this will operate in practise.  They will be required to acknowledge receipt of a report within 7 days of receipt of the report and are obliged to designate an impartial person who is competent to follow up on reports. Section 7 of the 2022 Act which inserts Section 5A into the 2014 Act requires these procedural protections to also apply to anonymous reports.

The relevant designated person must carry out an initial assessment within 3 months and must carry out follow up in regular intervals as prescribed in the 2022 Act until such time as the report is closed. A designated person upon completion of the initial assessment, can decides that there is no prima facie evidence that a relevant wrongdoing occurred and if so the procedure can be closed and the reporting person notified, in writing, as soon as practicable, of the decision and the reasons for it.

It is respectfully submitted that this is a strong procedural protection for those making protected disclosures and there is a significant level of protection afforded to those making a report under the 2022 Act which goes further than the 2014 Act.

4. Reversing the Burden of Proof and Availability of Interim Relief

Sections 21 2022 Act also significantly amends Sections 12 of the 2014 by the insertion of a new section 12(7C). This subsection provides that the burden of proof in penalisation claims will shift to the employer to prove that the act or omission concerned was based on duly justified grounds and did not occur because the reporting person made a protected disclosure. This places a significant burden on employers and great care needs to be had in ensuring proper procedures are followed.

Additionally, the 2022 Act widens the scope for employees seeking interim relief to forms of penalisation other than dismissal.

5. Expansion of Concept of Worker

Section 4 of the 2022 Act inserts Section 3(a)(iii) into the 2014 Act. This insertion significantly expands the definition of who is considered a ‘worker’ for the purposes of availing of protections under the Act. A very wide category of individuals can fall under this category including contractors, those on work experience, volunteers, those going through the recruitment process and even those involved in pre-contractual negotiations. This is very expansive and provides significant protections to a wide variety of people who may not be considered ‘employees’ in the traditional sense.

6. Applicability of Legislation

Section 8 of the 2022 Act makes it clear that any company with 50 or more employees must establish the formal channels and procedures envisaged in the 2014 Act and are subject to the protected disclosures regime. Section 8 of the 2022 Act also provides a derogation from these obligations until 17 December 2023 for organisations who have between 50 and 249 employees albeit that the Minister for Public Expenditure and Reform is empowered to amend these requirements to include companies with less than 50 employees by way of Ministerial order.

Conclusion:

In short, the changes envisaged by the 2022 Act are very wide ranging and has fundamentally altered the landscape for those seeking to make protected disclosures by offering a significantly wide-ranging suite of protections.

Should you or your company be effected by the 2022 Act or have any queries in relation to protected disclosures do not hesitate to contact Stephen Kirwan at Stephen.kirwan@kodlyons.ie .

[1] https://www.irishstatutebook.ie/eli/2022/act/27/enacted/en/html

[2] [2021] IESC 77