Protected Disclosures (Amendment) Act 2022 signed into law

In July, the Protected Disclosures (Amendment) Act 2022 was enacted, which transposes the EU Directive on the protection of persons who report breaches of Union law as well as an overhaul of the statutory framework for the protection of whistleblowers.

Key provisions of the Act include:

• Significant expansion of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders, members of administrative, management or supervisory bodies and job applicants.
• An obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. A derogation until 17^th December 2023 will be put in place as regards this requirement for organisations with between 50 and 249 employees. All public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the 2014 Act. The Act also provides that the Minister may, by way of order, extend the application of the Act to classes of employees with less than 50 employees.

• Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation to:
  • Acknowledge receipt of the protected disclosure within seven days,
  • Diligently follow-up on the information contained in the protected disclosure,
  • Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within three months following an initial assessment,
  • Communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.
• A new Office of the Protected Disclosures Commissioner will be established in the Office of the Ombudsman to support the operation of the new legislation. This new office will start operations later this year and will:
  • Receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the Act of 2014,
  • Support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
  • In cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.

• The protections for workers are to be strengthened through reversal of the burden of proof in civil proceedings concerning allegations of retaliation against whistleblowers.
• The new Act makes references to interpersonal grievances outlining that these are not to be considered a relevant wrongdoing and should be dealt with through internal procedures.
• The Act states there is no obligation to accept and follow-up on anonymous reports, but an employer may choose to do so. It also clarifies that a worker who makes a disclosure by way of an anonymous report, and who is subsequently identified and penalised for having made a protected disclosure, is entitled to the protections contained in the Act.

Guidance will be issued in the coming weeks on the requirements of the new legislation to help provide support on the obligations of the new framework.

If your Organisation does not have an existing policy and procedure and you require support in putting the required formal reporting channels and procedures in place, contact a member of our team.