Disclosure Channels
2022 Act and Channels
The 2022 Act provides that all undertakings in the private sector with 50 or more employees and all public bodies shall establish formal channels and procedures for the making of protected disclosures by their workers. These channels and procedures shall provide for acknowledgement of all reports within 7 days, diligent follow-up of the reports received and the provision of feedback to the reporting person within 3 months.
The 2022 Act provides that all recipients designated by law shall establish formal channels and procedures for the making of protected disclosures by workers in the sectors they regulate. These channels and procedures shall provide for acknowledgement of all reports within 7 days, diligent follow-up of the reports received the provision of feedback and follow-up.
Who Covered
Private sector organisations with 50 or more employees must establish formal channels and procedures for their workers to make protected disclosures in accordance with Article 8 of the Directive. There is a derogation from this obligation for employers with between 50 and 249 employees until 17 December 2023, as allowed by Article 26.2 of the Directive.
The Minister may, by order, reduce the threshold of 50 employees for specified classes of employers, subject to a risk assessment and public consultation and that the Minister can make an order setting out how organisations should calculate the threshold of 50 employees.
The risk assessment is to take account of the activities of the class or classes of employers concerned and the ensuing level of risk for, in particular, the environment and public health.
The threshold of 50 employees does not apply where the employer is a public body, or certain businesses regulated under EU legislation (e.g., EU wide funds).
Internal Channel Required
Internal channels must be designed, established and operated in a secure manner; that all reports be acknowledged within 7 days; that all reports (including anonymous reports) be diligently followed up; that feedback on actions taken or envisaged be given to the reporting person within 3 months (or 6 months in duly justified cases); and that information on the final outcome of any investigations is given to the reporting person. It also provides for the designation of dedicated, trained staff to operate the reporting channel and detailed information on how to report a protected disclosure that must be made available and easily accessible by the prescribed person.
Internal channels
- must be designed, established and operated in a secure manner;
- that all reports be acknowledged within 7 days; that all reports be diligently followed up; and
- that feedback on actions taken or envisaged be given to the reporting person within 3 months.
An impartial staff member is to be designated to operate the reporting channel.
The Minister may by regulations, provide that the internal reporting channels and procedures required to be established, maintained and operated by employers shall also enable the making of reports by other persons or such class or classes of other persons, as the Minister may prescribe who are in contact with the entity concerned in the context of their work-related activities.
Outsourcing
Internal reporting channels and procedures may be—
- operated internally by a person or department designated for that purpose by an employer, or
- provided externally by a third party authorised in that behalf by an employer.
Employers with less than 250 employees (including employers in respect of whom an order has been made) may share resources as regards the receipt of reports and any investigation to be carried out as part of the process of follow-up.
Requirement and Procedures
Internal reporting channels and procedures include the following:
- channels for receiving reports that shall be designed, established and operated in a secure manner that ensures that the confidentiality of the identity of the reporting person and any third party mentioned in the report is protected and prevents access thereto by persons other than those permitted
- acknowledgement, in writing, to the reporting person of receipt of the report not more than 7 days after receipt of it;
- the designation of an impartial person or persons who are competent to follow-up on reports (who may be the same person or persons as the recipient of the report) who will maintain communication with the reporting person and, where necessary, request further information from, and provide feedback to, that reporting person;
Diligent follow-up by the designated person, which shall include at least the following:
- the carrying out of an initial assessment, including seeking further information from the reporting person, if required, as to whether there is prima facia evidence that relevant wrongdoing may have occurred;
- if having carried out an initial assessment, the designated person decides that there is no prima facia evidence that covered wrongdoing may have occurred—closure of the procedure or referral of the matter to such other agreed procedures applicable to grievances to which a reporting person has access or such other procedures, provided in accordance with a rule of law or enactment (other than this Act), to which a reporting person has access, and)
- notification of the reporting person, in writing, as soon as practicable, of the decision and the reasons for it;
- if having carried out an initial assessment, the designated person decides that there is prima facia evidence that relevant wrongdoing may have occurred, the taking of appropriate action to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned;
Feedback Requirements
The following is required
- the provision of feedback to the reporting person within a reasonable period, being not more than 3 months from the date the acknowledgement of receipt of the report was sent to the reporting person, if no such acknowledgement was sent, not more than 3 months from the date of expiry of the period of 7 days after the report was made;
- the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person.
Information & Channel Requirements
The provision to workers of clear and easily accessible information is required, in such form and manner as the employer considers appropriate , regarding—
- the procedures applicable to the making of reports using the internal reporting channels and procedures,
- where the employer accepts anonymous reports, the conditions pursuant to which those reports may be accepted and follow-up undertaken, and
- the procedures for making a report to a prescribed public body or the Commissioner, as the case may be, in the manner specified in section 7, and, where relevant, to institutions, bodies, offices or agencies of the European Union.
Internal reporting channels and procedures shall enable reports to be made—
- in writing or orally, or both, and
- in the case of a report made orally, by telephone or through other voice messaging systems and, upon request by the reporting person, by means of a physical meeting with the employer or a designated person, as the case may be, within a reasonable period from the making of the request.
Where, an employer accepts an anonymous report, unless prohibited by any other enactment, the Act shall apply, with any necessary modifications.
The internal reporting channels and procedures shall be accessible by workers of the entity concerned and of its subsidiaries and affiliates (in this subsection referred to as “the group”), where applicable, and, to any extent possible, by any of the group’s agents and suppliers and by any persons who acquire information on relevant wrongdoing though their work-related activities with the entity and the group.
Disclosure to Commissioner & Designated Recipients
A disclosure may be made to the Protected Disclosures Commissioner or another person prescribed by law, if the worker reasonably believes that the wrongdoing falls within the types of matter for which the person is prescribed and that the information disclosed and any allegation contained in it, are substantially true.
The Minister may by order prescribe such persons as, by reason of the nature of their responsibilities or functions, appear appropriate to be recipients of disclosures of relevant wrongdoings falling within the description of matters in respect of which they are prescribed. Regulations may prescribe in respect of each prescribed public body such description of matters as appears appropriate by reason of the nature of the responsibilities or functions of the person.
Recipients designated by law must establish formal channels and procedures for workers in the sectors they regulate or supervise to make protected disclosures. Workers can make protected disclosures to the Protected Disclosures Commissioner.
External Reporting Channels and Procedures
External reporting channels and procedures must be designed, operated and established by recipients designated by law in accordance with Articles 12, 13 and 14 of the Directive. For the purposes of enabling the making of reports by workers, recipients designated by law and the Commissioner shall establish, maintain and operate independent and autonomous external reporting channels and procedures for receiving and handling such reports and for follow-up (in the legislation referred to as “external reporting channels and procedures.
External reporting channels and procedures shall include the following:
- Acknowledgement, in writing, to the reporting person of receipt of the report not more than 7 days after receipt of it, save where the reporting person explicitly requested otherwise, or the prescribed public body reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person;
- Diligent follow-up by the designated person, which shall include at least the following:
- the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether—
there is prima facia evidence that a relevant wrongdoing may have occurred, and
the report concerns matters that fall within the scope of the matters for which the prescribed public body has responsibility by virtue of the functions conferred on the prescribed public body by or under this or any other enactment;
Procedure after Assessment I
If, having carried out an initial assessment, the prescribed public body decides that there is no prima facie evidence that a relevant wrongdoing may have occurred—
- closure of the procedure, and notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
- if, having carried out an initial assessment, the prescribed public body decides that there is prima facie evidence that a relevant wrongdoing may have occurred but that the relevant wrongdoing is clearly minor and does not require further follow-up—
closure of the procedure, and - notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
Having carried out an initial assessment the procedure may provide for closure of the procedure in the case of repetitive reports where the prescribed public body decides that the report does not contain any meaningful new information about a relevant wrongdoing compared to a previous made or transmitted to the prescribed public body or to any other person in respect of which the relevant procedures (including any procedures that applied at the time any past report was made) were concluded, unless new legal or factual circumstances justify a different follow-up.
Procedure after Assessment II
If, having carried out an initial assessment, the prescribed public body decides that there is prima facie evidence that a relevant wrongdoing may have occurred and the report concerns matters that fall within the scope of the matters covered , the procedure may provide for the taking of appropriate action, in accordance with the functions conferred on the prescribed public body by or under this or any other enactment, to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned;
The procedure may provide that having carried out an initial assessment if the prescribed public body decides that the disclosure concerns matters for transmission of the report to—
- such other prescribed public body or persons as the prescribed public body considers appropriate, or
- where there is no such other prescribed public body a), the Commissioner, and
- notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
Where the procedure has not otherwise been closed under the above categories and the report has not been transmitted to any other prescribed public body or persons or the Commissioner, the procedure may provide for the provision of feedback to the reporting person within a reasonable period, being not more than
- where acknowledgement of receipt of the report was sent to the reporting person under 3 months from the date of such acknowledgement, or 6 months from the date of the acknowledgement in duly justified cases due to the particular nature and complexity of the report, or where no acknowledgement of receipt of the report was sent to the reporting person 3 months from the date of expiry of the period of 7 days after the report was made, or
- 6 months from the date of expiry of the period of 7 days after the report was made in duly justified cases due to the particular nature and complexity of the report;
Where feedback is not or is not likely to be provided to the reporting person within the period of 3 months notification of the reporting person, in writing, as soon as practicable of the extension of that period
The procedure may provide for ( the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person
Procedure after Assessment III
Where a report concerns a breach, the procedure shall provide for transmission as soon as practicable of the information contained in the report to relevant competent institutions, bodies, offices or agencies of the EU, as appropriate, for further investigation, where provided for under Union law or the law of the State.
A reporting person shall, in respect of the report concerned and any follow-up procedures, , cooperate with a prescribed public body in relation to the performance by the prescribed public body of the functions conferred.
If necessary and appropriate, having due regard to the number of reports received by a prescribed person, the prescribed public body may deal with reports of a serious relevant wrongdoing as a matter of priority. This does not affect legal obligations applying to the prescribed public body concerned as regards confidentiality, legal professional privilege, privacy and data protection.
Requirement for External Channel
External reporting channels and procedures shall be considered to be independent and autonomous if they meet the following criteria:
- they are designed, established and operated in a manner that ensures the completeness, integrity and confidentiality of the information concerned and prevents access thereto by persons other than designated persons and any other members of staff duly authorised in that behalf;
- they enable the durable storage of information in accordance with section 16Cto allow further investigations to be carried out.
External reporting channels and procedures shall enable reports to be made to a prescribed public body in writing and orally, and in the case of a report made orally, by telephone or through other voice messaging systems and, upon request by the reporting person, by means of a physical meeting with the prescribed public body or a designated person, as the case may be, within a reasonable period from the making of the request.
Designation of Staff
Each prescribed public body shall designate one or more than one member of staff to be responsible for handling reports and, in particular, for—
providing any person with information on the procedures for making a report in the manner specified
receiving and follow-up on reports made to the prescribed person, and
maintaining communication with the reporting person for the purpose of providing feedback and, where necessary, requesting further information from that reporting person.
Each prescribed public body shall ensure that where a report is received by the prescribed public body through channels and procedures other than those referred to or is received by a member of staff other than a designated person—
- it shall be forwarded promptly and without modification to the designated person, and
- any information that might identify the reporting person or the person concerned shall not be disclosed by such member of staff.
Each prescribed public body shall ensure that designated persons receive specific training for the purposes of handling reports.
Information
The prescribed public body shall publish on a website maintained by or on behalf of such prescribed public body in a separate, easily identifiable and accessible section at least the following information:
- the conditions for qualifying for protection under this Act;
- the contact details of the prescribed public body to whom a report may be made in the manner specified in particular the electronic and postal addresses and the telephone numbers for making the report, indicating whether the telephone conversations are recorded;
- the procedures applicable to the making of reports using the external reporting channels and procedures, including the manner in which the prescribed public body may request the reporting person to clarify the information reported or to provide additional information, the period for providing feedback (including further feedback) and the type and content of such feedback;
- the confidentiality regime applicable to reports and, in particular, the information in relation to the processing of personal data in accordance with applicable data protection law;
- the nature of the follow-up to be given in relation to reports;
- the remedies and procedures for protection against penalisation and the availability of advice pursuant to Article 20.1(a) of the Directive for persons contemplating making a report;
- a statement clearly explaining the conditions under which persons making a report using the external channels and procedures are protected from incurring liability for a breach of confidentiality;
- contact details for the support services;
- such other information as the Minister may specify in guidance.
Each prescribed public body shall review the external channels and procedures regularly but at least once within 3 years after the date of first publication of information and at least once in every period of 3 years after the first such review.
In reviewing the external channels and procedures, the prescribed public body shall take account of their operation and may consult with other recipients designated by law in relation to the operation of external channels and procedures established, maintained and operated by them and adapt the external channels and procedures accordingly as the prescribed.
Feedback
Where a report is transmitted to a prescribed person, feedback shall be provided to the reporting person not later than—
- where acknowledgement of receipt of the report was sent to the reporting person 3 months from the date of the original acknowledgement, or 6 months from the date of the original acknowledgement in duly justified cases due to the particular nature and complexity of the report, or
- where there was no original acknowledgement 3 months from the date of expiry of the period of 7 days after the report was made, or) 6 months from the date of expiry of the period of 7 days after the report was made in duly justified cases due to the particular nature and complexity of the report.