The Protected Disclosures (Amendment) act 2022 has been signed into law but needs a commencement order to bring it into operation in daily life.
This 2022 act extends the definition of ‘worker’ which now includes
- Job applicants
- Board members, both executive and non-executive
The Protected Disclosures Act 2014 had a narrower definition of ‘worker’ which can be found in section 3 of the Protected Disclosures Act 2014.
The 2022 extends the definition of ‘relevant wrongdoing’ but excludes grievances about interpersonal conflicts between a person reporting another worker and the person about whom he is making a report. A breach means an act or omission-
‘breach’ means an act or omission—
(a) that is unlawful and to which one or more of the following
(i) the act or omission falls within the scope of the Union acts set
out in the Annex that concern the following areas:
(I) public procurement;
[2022.] Protected Disclosures [No. 27.] PT.2 S.4
(Amendment) Act 2022.
(II) financial services, products and markets, and prevention of
money laundering and terrorist financing;
(III) product safety and compliance;
(IV) transport safety;
(V) protection of the environment;
(VI) radiation protection and nuclear safety;
(VII) food and feed safety and animal health and welfare;
(VIII) public health;
(IX) consumer protection;
(X) protection of privacy and personal data, and security of
network and information systems;
(ii) the act or omission affects the financial interests of the Union as
referred to in Article 325 of the Treaty on the Functioning of the
European Union and as further specified in relevant Union
(iii) the act or omission relates to the internal market, as referred to
in Article 26(2) of the Treaty on the Functioning of the
European Union, including breaches of Union competition and
State aid rules, as well as breaches relating to the internal
market in relation to acts which breach the rules of corporate tax
or to arrangements the purpose of which is to obtain a tax
advantage that defeats the object or purpose of the applicable
corporate tax law;
(b) that defeats the object or purpose of the rules in the Union acts and
areas referred to in paragraph (a);
Employers with 50 employees
Employees with 50 or more employees must establish internal reporting channels and procedures to allow employees make protected disclosures. There are transitional periods to allow employers with 50 to 249 employees put these procedures in place.
Employers with 250 or more employees must establish the procedures once the act comes into operation.
The definition of penalisation has been widened with the new act to include
- Lay off
- Negative performance assessment
- Loss of opportunity for promotion
- Negative reference
Burden of proof
The employer will now have to discharge the burden of proof in respect of penalisation for penalisation will be deemed to have occurred as a result of making the protected disclosure unless the employer can prove the act or omission complained of was justified.
The new act creates new offences, too, including
- The hindering of the making of a report
- Failing to set up or operate internal reporting channels and procedures
- Breaching the duty of confidentiality about the identity of the person making the report
- Penalising or threatening to penalise
Fines of up to €250,000 and imprisonment of up to 2 years are penalties provides for in the new act in respect of the offences above.
Employers would be well advised to update their policies and procedures in the workplace in respect of whistleblowing and protected disclosures to ensure they are compliant with the law when the Protected Disclosures (Amendment) Act 2022 is commenced.