New whistleblowing rules in force from January 2023

Last updated: November 24th, 2022

The Minister for Public Expenditure and Reform, Michael McGrath, recently confirmed that the Protected Disclosures (Amendment) Act 2022 will come into force on 1 January 2023.

Some of the most significant changes to the existing whistleblowing legislation include:

  • employers (with more than 250 employees) and public bodies will have to put reporting channels in place by 1 January 2023
  • employers with more than 50 employees have until 17 December 2023 to put the required reporting channels in place
  • channels must provide for acknowledgement, follow up and feedback
  • an Office of the Protected Disclosures Commissioner will also be established

Wider range of positions receive protection under new Act

One of the key changes being brought in under the Protected Disclosures (Amendment) Act 2022 is the widening of the definition of “worker” to include:

  • board members (including non-executive members)
  • shareholders
  • trainees
  • job applicants, and
  • volunteers

The existing whistleblowing legislation limited protection to workers who came across information in connection with their employment.

Private sector organisations to establish formal reporting channels

The new legislation obliges private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. This is currently only the case in the public sector.

From 1 January 2023, employers with 250 or more employees will need to put a reporting channel in place for receiving disclosures and establish a procedure for processing disclosures.

Employers with between 50 and 249 employees are not required to establish these reporting channels until 17 December 2023.

Wider definition of ‘relevant wrongdoing’

The definition of ‘relevant wrongdoing’ has also been widened under the 2022 Act by the inclusion of a range of “breaches” which can fit the definition of a protected disclosure. These wrongdoings will now include various breaches of EU laws in the areas of:

  • financial services
  • products and markets
  • prevention of money laundering and terrorist financing
  • data and personal privacy
  • corporate tax rules including those governing anti-avoidance, and
  • protection of the environment

Wider definition of ‘penalisation’

The 2022 Act also widens the definition of penalisation. If an employee or other protected person makes a disclosure, employers must be aware of the wider definition of penalisation which now includes the following (non-exhaustive list):

  • suspension, lay-off or dismissal
  • demotion or loss of opportunity for promotion
  • transfer of duties, change of location, change in working hours or rates of pay
  • disciplinary action including financial penalties
  • unfair treatment
  • a negative performance assessment or employment references
  • medical or psychiatric referrals, and
  • blacklisting within an industry

Burden of proof reversed and shifts to employer

The new whistleblowing legislation reverses the burden of proof in protected disclosure claims. Similar to the obligations contained under employment equality legislation, an employer involved in a protected disclosure process will need to establish that any alleged penalisation of a whistleblower employee is based on objectively justified grounds.

Criminal offences and sanctions

The amended legislation also creates a range of criminal offences and sanctions. Employers who hinder a relevant person from making of a protected disclosure or penalise a worker for making a protected disclosure could face criminal liability.

Depending on the nature of the offence, employers may be liable to punitive fines starting at €75,000 and rising to €100,000 or in some cases €250,000.

Certain officers of a business may also be liable to serve up to 12 months in prison on summary conviction or up to 2 years on indictment.

Employees will also be subject to criminal liability should they make a protected disclosure based on information that they know to be false.

What should organisations do to prepare?

If your organisation employs fifty or more staff, you should update your whistleblowing policies and ensure that you have created the formal internal reporting channel and procedures as required under the updated protected disclosure legislation.

Organisations with more than 250 staff need to ensure their compliance with the new legislation from 1 January 2023.

Businesses with between 50 and 249 employees have until 17 December 2023 to comply.

Are you prepared for the upcoming changes in protected disclosure legislation?

Protected disclosures can be a difficult area of employment law for business owners and management to navigate.

To ensure your organisation is ready for these updated legal obligations, call your Graphite employment law expert today on (01) 886 0350 or request a callback here.

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