Disclosure Enforcement
Commissioner / Ombudsman
The 2022 Act establishes the Office of the Protected Disclosures Commissioner and how the Disclosures Commissioner shall deal with protected disclosures made or transmitted to him/her. The Protected Disclosures Commissioner shall be the Ombudsman.
The Commissioner shall have formal channels and procedures in place for receiving and following up on any disclosures made by workers to the Commissioner.
Where the Commissioner receives a report in the manner specified in, the Commissioner shall, within 14 days, identify a prescribed person or another suitable person competent to take appropriate action to follow up on the information reported and shall transit the report to that prescribed person or suitable person, as appropriate, for follow-up. Where the Commissioner cannot identify a prescribed person or suitable person with the competence to address the matter reported, the Commissioner shall follow-up directly on the report in the manner that applies to recipients designated by law .
Where a Minister transmits a report received to the Commissioner, the Commissioner shall, within 14 days, identify a prescribed person or another suitable person competent to take appropriate action to follow up on the information reported and shall transit the report to that prescribed person or suitable person, as appropriate, for follow-up. Where the Commissioner cannot identify a prescribed person or suitable person with the competence to address the matter reported, the Commissioner shall follow-up directly on the report, providing feedback within 3 months (or 6 months in duly justified circumstances) and information on the final outcome of any investigations triggered by the report.
Where the Commissioner transmits a report to a suitable person (i.e., a person who is not a prescribed person), said suitable person shall: acknowledge the report within 7 days; follow-up diligently on the report; provide feedback to the reporting person within 3 months (or 6 months in duly justified cases); and provide information on the final outcome of any investigations triggered by the report.
Where the Commissioner is required to follow- up directly on a report received because no other suitable person with the required competence can be identified, this section gives appropriate powers for the Commissioner to request and obtain information, documents etc. and to enter a premises (with a warrant, if required) for the purposes of same as well as offences for obstructing or hindering the Commissioner in the performance of his/her functions.
Protections of Identity
A person to whom a protected disclosure is made or transmitted ) shall not, without the explicit consent of the reporting person, disclose to another person, other than the designated persons (including members of staff designated) as the first-mentioned person reasonably considers may be necessary for the purposes of the receipt or transmission of, or follow-up on reports, the identity of the reporting person or any information from which the identity of the reporting person may be directly or indirectly deduced.
A reporting person shall have a right of action in tort against a person who fails to comply. This does not apply in the following cases:
- where the disclosure is a necessary and proportionate obligation imposed by EU law or the law of the State in the context of investigations or judicial proceedings, including with a view to safeguarding the rights of defence of the person concerned;
- where the person to whom the report was made or transmitted shows that he or she took all reasonable steps to avoid disclosing the identity of the reporting person or any such information or) reasonably believes that disclosing the identity of the reporting person or any such information is necessary for the prevention of serious risk to the security of the State, public health, public safety or the environment;
- where the disclosure is otherwise required by law.
Where the identity of the reporting person or any other such information referred to above is disclosed to another person as above, the reporting person shall be notified, in writing, before their identity or the information concerned is disclosed unless such notification would jeopardise—
- the effective investigation of the relevant wrongdoing concerned,
- the prevention of serious risk to the security of the State, public health, public safety or the environment, or
- the prevention of crime or the prosecution of a criminal offence.
A notification under shall include the reasons for the disclosure referred to in that paragraph.
Where reports are made or transmitted to a prescribed person, the Commissioner or another suitable person that include trade secrets, the prescribed person, the Commissioner or such other suitable person shall not use or disclose those trade secrets for any purpose beyond what is necessary for proper follow-up of the disclosure concerned.
A failure to comply is actionable by the person by whom the protected disclosure was made if that person suffers any loss by reason of the failure to comply.
The identity of any person concerned shall be protected by a prescribed person or the Commissioner, as the case may be, to whom a report is made or transmitted, as the case may be, or by another suitable person to whom a report is transmitted, , for as long as any investigation triggered by the report is ongoing.
This does not preclude the disclosure of the identity of any person concerned where the prescribed person, the Commissioner or the suitable person, as the case may be, reasonably considers that such disclosure is necessary for the purposes of the legislation t or where such disclosure is otherwise authorised or required by law, as the case may be.
Record keeping
Employers and prescribed persons to keep proper records of all protected disclosures made to them as required by Article 18 of the Directive.
A person to whom an anonymous report is made or transmitted under the legislation shall make a record, in such form and manner as the person considers appropriate, of its receipt or transmission, as the case may be, and of such information relating to the report as that person considers necessary and appropriate for the purposes of the application of the legislation should the reporting person be subsequently identified and penalised for having made the report.
Records shall be retained for no longer than is necessary and proportionate to comply with the provisions of this or any other enactment.
Where a recorded telephone line or another recorded voice messaging system is used to make a report under the legislation subject to the consent of the reporting person, the person to whom this section applies may document the oral reporting in the form of—
- a recording of the conversation in a durable and retrievable form, or
- a complete and accurate transcript of the conversation prepared by the member of staff designated for the purposes therein stated by the person to whom this section applies.
Where an unrecorded telephone line or another unrecorded voice messaging system is used to make a report under the legislation the person to whom this section applies may document the oral reporting in the form of accurate minutes of the conversation prepared in writing by the member of staff designated for the purposes therein stated.
Follow Up
Where a reporting person has disclosed his or her identity, and the person has documented the reporting in the form of a transcript or minutes, the person shall offer the reporting person the opportunity to check, rectify and agree by way of signature the transcript or minutes.
Where a reporting person requests a meeting in person with a member of staff designated
- the person to whom this section applies shall ensure, subject to the consent of the reporting person, that complete and accurate records of the meeting are kept in a durable and retrievable form, and
- the person to whom this section applies may document the meeting in the form of—an audio recording of the conversation in a durable and retrievable form, or accurate minutes of the meeting prepared by a member of staff so designated,
- and where the reporting person has disclosed his or her identity, the person to whom this section applies shall offer that reporting person the opportunity to check, verify and agree the minutes of the meeting by signing them.
Reports shall be retained for no longer than is necessary and proportionate to comply with the provisions of this or any other enactment.
The Freedom of Information Act does not apply to records concerning protected disclosures, other than administrative records, in order to ensure the full protection of the identities of reporting persons and persons
Support measures
The Minister shall ensure appropriate information is made available free of charge on how to make a protected disclosure and the protections available, as required by the EU Directive.
Competent authorities and the Protected Disclosures Commissioner shall provide such information as may be required by the Workplace Relations Commission or the courts to make a determination as to whether a person is entitled to the protections of the legislation, as required by Article 20.1(b) of the Directive.
Information to Minister and reports
Public bodies, prescribed persons and the Protected Disclosures Commissioner shall provide information on an annual basis to the Minister regarding the number of protected disclosures received and followed up. The Minister shall collate and transmit this information in aggregate form to the European Commission as required by Article 27.2 of the Directive. This section also provides for the publication of annual reports on the numbers of protected disclosures made by public bodies, prescribed persons and the Commissioner.
Annual report
Every public body shall prepare and publish not later than 30 June in each year a report in relation to the immediately preceding year in a form which does not enable the identification of the persons involved containing information relating to the following
- the number of protected disclosures made to the public body,
- the action (if any) taken in response to those protected disclosures, and
- such other information relating to those protected disclosures and the action taken as may be requested by the Minister from time to time.
No contracting-out of protections
Any provision in an agreement is void in so far as it purports—
- to prohibit or restrict the making of protected disclosures,
- to exclude or limit the operation of any provision of the Protected Disclosures Act
- to preclude a person from bringing any proceedings under or by virtue of that Act, or
- to preclude a person from bringing proceedings for breach of contract in respect of anything done in consequence of the making of a protected disclosure.
Protection of Disclosure Provisions in other enactments
The Minister shall—
not later than the end of the period of 5 years beginning on the date of the passing of the Protected Disclosures (Amendment) Act 2022 commence a review of the operation of this Act. Not more than 12 months after the end of that period referred to) make a report to each House of the Oireachtas of the findings made on the review and the conclusions drawn from those findings.
Certain data subject access rights under GDPR/ data protection law are restricted to ensure complete protection of the identity of reporting persons and persons concerned and to prevent any efforts to impede, frustrate or slow down follow-up on reports received,
Offences
In a prosecution of a person for any offence prohibiting or restricting the disclosure of information, it is a defence for the person to show that, at the time of the alleged offence, the disclosure was, or was reasonably believed by the person to be, a protected disclosure.
A person who—
- hinders or attempts to hinder a worker in making a report,
- penalises or threatens penalisation or causes or permits any other person to penalise or threaten penalisation against any of the following: a reporting person; a facilitator; any third person who is connected with a reporting person and who could suffer retaliation in a work-related context, including as a colleague or relative of the reporting person; any legal entity that a reporting person owns, works for or is otherwise connected with in a work-related context,
- brings vexatious proceedings against any person or legal entity referred to in the last paragraph ,
- breaches the duty of confidentiality regarding the identity of reporting persons, or
commits an offence.
A person who commits any of the above offences is liable—
- on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or
- on conviction on indictment, to a fine not exceeding €250,000 or to imprisonment for a term not exceeding 2 years, or both.
A person who fails to comply with the requirement establish, maintain and operate internal reporting channels and procedures is liable—
- on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or
- on conviction on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 2 years, or both.
A reporting person who makes a report containing any information that he or she knows to be false commits an offence.
- on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or
- on conviction on indictment, to a fine not exceeding €100,000 or to imprisonment for a term not exceeding 2 years, or both.
Summary proceedings for an offence u may be brought and prosecuted by the Workplace Relations Commission.
Where an offence has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate commits an offence and shall be liable to be proceeded against and punished as if he or she committed the first-mentioned offence.