Disclosure Recipients
Disclosure to Employer or another Responsible Person
A disclosure may be made to the worker’s employer where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly to the conduct of a person other than the worker’s employer, or to something for which a person other than the worker’s employer has legal responsibility, to that other person.
A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated as making the disclosure to the employer.
Internal and external reporting channels and follow-up
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 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 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).
Disclosure to Commissioner and Other Designated Persons
The role of Office of the Protected Disclosures Commissioner is to send reports of wrongdoing to the appropriate organisation in accordance with the Protected Disclosures Act.
In certain circumstances, the Protected Disclosures Commissioner will consider a report of wrongdoing and follow it up if there is no other appropriate organisation. The Commissioner can receive reports of wrongdoing:
- directly from a worker
- from a Minister, who is obliged to send it to the Commissioner within ten days of receipt or
- from a ‘prescribed person’ in certain circumstances.
The forwarding by the Commissioner of a report of alleged wrongdoing does not mean that the report constitutes a Protected Disclosure for the purposes of the Protected Disclosures Act.
In most cases, the Protected Disclosures Commissioner will forward the report of wrongdoing to the most appropriate prescribed person.
Designated Body Reporting Channel
For the purposes of enabling the making of reports by workers, recipients designated by law and the Commissioner are to establish, maintain and operate independent and autonomous external reporting channels and procedures for receiving and handling such reports and for follow-up (referred to as “external reporting channels and procedures”).
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.
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.
Disclosure to Minister
A disclosure may be made by a worker who is or was employed in a public body, to the responsible Minister of the Government. A disclosure may only be made to a Minister if the worker has previously made a report of substantially the same information in the manner but
- no feedback has been provided to the worker in response to the report within the period specified or, where feedback has been provided, the worker reasonably believes that there has been no follow-up or that there has been inadequate follow-up;
- the worker reasonably believes the head of the public body concerned is complicit in the relevant wrongdoing concerned;
- the worker reasonably believes that the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage.
All disclosures made to Ministers shall be transmitted to the Protected Disclosures Commissioner for direct follow-up within ten days.
Disclosure to legal adviser
A disclosure may be made by the worker in the course of obtaining legal advice from a barrister, solicitor, trade union official or official of an excepted
Disclosure in other cases
A disclosure may be made other than by one of the above three prescribed means only If a worker reasonably believes that the information disclosed in the report, and any allegation contained in it, are substantially true, and the worker—
has previously made a disclosure of substantially the same information in the prescribed manner but no appropriate action was taken in response to the report within the period specified reasonably believes that— the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage, or if he or she were to make a report in the manner specified as the case may be—
- there is a risk of penalisation, or
- there is a low prospect of the relevant wrongdoing being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where a prescribed person may be in collusion with the perpetrator of the wrongdoing or involved in the wrongdoing.