A year in review – top ten whistleblowing queries in 2023
A year in review – top ten whistleblowing queries in 2023
Ireland’s whistleblowing regime has changed significantly following the transposition of the EU Whistleblowing Directive earlier this year – with the Protected Disclosures (Amendment) Act 2022 amending Ireland’s pre-existing whistleblowing legislation, the Protected Disclosures Act 2014, (together, the Act).
Following our first publication on the changes which will come into effect for employers with 50 or more employees on 17 December 2023, in this second instalment of our three-part series on whistleblowing in Ireland we now take a look back on 2023 and the top queries we received from clients during the first year of the new whistleblowing regime.
1. Do we need to introduce a policy?
Most likely - all private sector employers with 50 or more employees should have a whistleblowing policy. As outlined in our first publication all private sector employers with 50 or more employees will be captured by the requirement to have an internal reporting channel and procedure from 17 December 2023.
As this requirement includes an obligation to provide all “workers” with clear and easily accessible information on the procedures for raising a protected disclosure using internal reporting channels and procedures, we consider that the only practical way to comply with this obligation is to have a whistleblowing policy in place.
2. What information do we have to provide to non-employee reporters?
The protected disclosures regime applies to “workers” and therefore captures a much broader group of individuals than just employees. “Workers” include all levels of employees, directors, consultants, contractors, agency workers, trainees, apprentices, shareholders, members of the administrative, management or supervisory body of the employer (including non-executive members), volunteers, job applicants and any individuals who acquire information during pre-contractual negotiations.
The statutory requirement to provide clear and easily accessible information on the procedures for raising a protected disclosure using internal reporting channels and procedures applies equally to all individuals falling within definition of “worker”. There is no one-size-fits all to complying with this requirement of the Act - some employers are choosing to have one standalone policy applicable to all workers, while others are adopting different internal and external facing policies applicable to employee / non-employee reporters.
3. Are we obliged to provide details on how to make external reports?
Yes, the Act places an obligation on employers to provide workers with clear and accessible information regarding the procedures for making a report to a prescribed person or the Office of the Protected Disclosures Commissioner and where relevant to institutions/bodies/offices or agencies of the EU. Employers are therefore including information on how to make such external reports and the standards that apply to making external reports within their whistleblowing policy.
4. Are we obliged to accept anonymous protected disclosures?
No, the Act provides that there is no obligation on private sector employers to accept and follow-up on anonymous disclosures. This leaves it open to employers to decide whether they consider it appropriate to follow-up on a matter which is the subject of an anonymous report.
Where an employer chooses to accept anonymous disclosures, their whistleblowing policy should outline the conditions that apply to the acceptance and follow-up of such anonymous disclosures. In practical terms, this means the policy should outline when an employer will and will not follow up on an anonymous disclosure.
5. Can we retain our centralised reporting channel at parent company level?
This has been the most common query raised by employers in Ireland that are part of a larger group company structure which already has a centralised reporting channel operated at group or parent level. In such instances, the group is understandably often keen to retain its existing centralised reporting channel.
As the Commission Expert Group on the EU Whistleblowing Directive has indicated that the basic rule is that each legal entity is required to have its own internal reporting channels and procedures, we consider that a centralised channel alone is not sufficient to comply with the requirements of the Act. However, in practice we are seeing many employers retain their centralised group reporting channel, while also introducing a local reporting channel for each legal entity. In this scenario, the whistleblowing policy often promotes the centralised reporting channel as the primary reporting channel, with the local reporting channel presented as an optional alternative route.
6. Do we have to provide training for our employees?
The Act does not expressly mandate that private sector employers provide training but given the onerous obligations on employers to establish reporting channels and procedures and the stringent requirements in relation to confidentiality, we advise that, at a minimum, training is provided to the persons designated to receive and follow up on protected disclosures, e.g. the HR / Legal / Compliance Teams, as well as and any other persons with responsibility for implementing or overseeing the internal reporting channel.
Also, the Act provides that the persons tasked with carrying out the initial assessment of the disclosure and engaging with the worker who raised the protected disclosure must be "competent". One way of demonstrating such competence is to ensure that these individuals have been trained on the employer’s whistleblowing policy and the requirements of the Act.
7. Can an interpersonal grievance be a protected disclosure?
The Act expressly attempts to exclude interpersonal grievances from the remit of the protected disclosure regime, provided the grievance exclusively affects the worker raising the concern. Interpersonal grievances are defined as interpersonal conflicts between the worker raising the concern and another worker, or a complaint by the worker raising the concern to, or about, their employer which concerns them exclusively.
However, this wording does leave open the possibility that certain interpersonal grievances may fall within the remit of the Act where they do not only or exclusively affect the worker raising the concern. For example, where a worker discloses information of concern related to not only their health and safety, but also that of others, this may amount to a protected disclosure. In our experience, the dividing line between ‘interpersonal grievances’ and ‘protected disclosures’ can often be blurred and careful consideration needs to be given in a scenario where a report made under the whistleblowing policy is triaged and determined by the employer to simply be a grievance, and not a protected disclosure.
8. What feedback do we have to give to the worker who has made the disclosure?
The Act provides that the employer must provide feedback to the worker who has made a protected disclosure within a reasonable period of not more than three months from the date of acknowledgment of receipt of the disclosure and at further three-month intervals on request.
Feedback is information on the action envisaged or taken as follow-up and on the reasons for such follow-up. However, this does not entitle the worker to know whether or not any disciplinary action is ultimately taken against any employees on foot of their report. The Government Guidance for Public Bodies and Prescribed Persons published in November 2023 has helpfully clarified that the overriding requirement when providing feedback is that no information should be provided that could prejudice the outcome of the investigation or any subsequent process, or which could undermine the fair procedures rights of the person against whom allegations have been made.
9. Are we required to keep the identity of the worker who made the disclosure confidential?
Yes, the starting position for employers should be to protect the identity of the person who raised the protected disclosure. This is the most difficult aspect of the new whistleblowing regime to grapple with and creates difficulties for employers trying to investigate a report, particularly where it contains allegations against another employee – as, in our experience, is often the case.
The main exception to this general rule is where employers obtain the explicit consent of the reporting person to the disclosure of their identify. There are also a small number of other limited exceptions however, these are now narrower than those originally contained in the 2014 Act, a fact acknowledged in the Government Guidance. Extreme caution should be exercised when considering relying upon one of these exceptions as in the main, they are unlikely to apply in a common workplace scenario. Employers are reminded that it is a criminal offence to breach the duty of confidentiality owed to reporting persons, which could theoretically result in fine of up to €250,000 and/or up to two years’ imprisonment in the case of a successful conviction.
10. Is the worker required to make the disclosure in good faith?
No, the motivation for making a disclosure is irrelevant when determining whether or not the disclosure amounts to a protected disclosure. A disclosure can be made in bad faith and still qualify as a protected disclosure.
However, if the matter comes before the Courts and it is determined that the investigation of the relevant wrongdoing was not the sole or main motivation for the worker making the protected disclosure, any compensation that may be awarded can be reduced by up to 25%. In addition, it is also a criminal offence to make a disclosure of information, which a person knows to be false (and, on that basis, would not qualify as a protected disclosure in any event).
Keep an eye out in January 2024 for the third publication in this three-part series in which we will review recent whistleblowing case law and highlight the key takeaways for employers.