Disclosure Recipients
Protected Disclosures Act
Preliminary and General
Short title and commencement
1. (1) This Act may be cited as the Protected Disclosures Act 2014.
(2) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Annotations
Editorial Notes:
E2
Power pursuant to subs. (2) exercised (15.07.2014) by Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014).
2. The 15th day of July 2014 is appointed as the day on which the Protected Disclosures Act 2014 (No. 14 of 2014) comes into operation.
Provision for review
2. The Minister shall—
(a) not later than the end of the period of 3 years beginning on the day on which this Act is passed, commence a review of the operation of this Act, and
(b) not more than 12 months after the end of that period, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.
F1[Provision for further review
2A. The Minister shall—
(a) 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, and
(b) not more than 12 months after the end of the period referred to in paragraph (a) make a report to each House of the Oireachtas of the findings made on the review and the conclusions drawn from those findings.]
Annotations:
Amendments:
F1
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 26, S.I. No. 510 of 2022.
Interpretation
3. (1) In this Act—
F2[“Annex” means the Annex to the Directive, the text of which for ease of reference is set out in Schedule 6;]
F2[“breach” means an act or omission—
(a) that is unlawful and to which one or more of the following subparagraphs applies:
(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;
(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 measures; or
(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;
or
(b) that defeats the object or purpose of the rules in the Union acts and areas referred to in paragraph (a);]
F2[“Commissioner” means the person who, for the time being, holds the office of Protected Disclosures Commissioner established by section 10A;]
“contract of employment” means contract of service or apprenticeship, whether express or implied, and (if express) whether oral or in writing;
F2[“data protection law” means—
(a) the Data Protection Acts 1988 to 2018,
(b) the General Data Protection Regulation,
(c) all law of the State giving further effect to the General Data Protection Regulation,
(d) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 20162 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, and
(e) all law of the State giving effect or further effect to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 referred to in paragraph (d);]
F2[“Directive” means Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 20193 on the protection of persons who report breaches of Union law, as amended by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 20204;]
“disclosure”, in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention;
“educational establishment” means any university, college, school or other educational establishment;
“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a);
“employer”, in relation to a worker, means, subject to subsection (2) (c)—
(a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,
(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,
(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—
(i) the person for whom the worker works or worked, or
(ii) the person by whom the individual is or was introduced or supplied to do the work,
F3[…]
(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or F4[training,]
F5[(e) in the case of an individual who is a worker by virtue of paragraph (e) of the definition of that term, the undertaking of which the worker is or was a shareholder,
(f) in the case of an individual who is a worker by virtue of paragraph (f) of the definition of that term, the undertaking, the administrative, management or supervisory body of which the worker is or was a member,
(g) in the case of an individual who is a worker by virtue of paragraph (g) of the definition of that term and who is a volunteer, the person for whom the individual is or was a volunteer,
(h) in the case of an individual who is a worker by virtue of paragraph (h) of the definition of that term, the person by whom or on whose behalf the recruitment process concerned is or was carried out, or
(i) in the case of an individual who is a worker by virtue of paragraph (i) of the definition of that term, the person by whom or on whose behalf the pre-contractual negotiations are or were carried out;]
F2[“enactment” means—
(a) an Act of the Oireachtas,
(b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continued in force by virtue of Article 50 of the Constitution, or
(c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b);]
F2[“European Union” has the same meaning as it has in the European Communities Act 1972;]
F2[“facilitator” means an individual who assists, in a confidential manner, a reporting person in the reporting process in a work-related context;]
F2[“feedback” means the provision to a reporting person of information on the action envisaged or taken as follow-up and on the reasons for such follow-up;]
F2[“follow-up” means any action taken by—
(a) the recipient of a report made in the manner specified in section 6 or 7, or
(b) a person to whom a report is transmitted under section 7A, 8, 10C or 10D,
to assess the accuracy of the information contained in the report and, where relevant, to address the relevant wrongdoing reported, including, but not limited to, actions such as an internal inquiry, an investigation, prosecution, an action for recovery of funds or the closure of the procedure;]
F2[“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20165 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;]
“Minister” means the Minister for Public Expenditure and Reform;
F2[“Ombudsman” means the person who holds the office of Ombudsman in accordance with the Ombudsman Act 1980;]
F6[“penalisation” means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—
(a) suspension, lay-off or dismissal,
(b) demotion, loss of opportunity for promotion or withholding of promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
(e) coercion, intimidation, harassment or ostracism,
(f) discrimination, disadvantage or unfair treatment,
(g) injury, damage or loss,
(h) threat of reprisal,
(i) withholding of training,
(j) a negative performance assessment or employment reference,
(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,
(l) failure to renew or early termination of a temporary employment contract,
(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,
(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,
(o) early termination or cancellation of a contract for goods or services,
(p) cancellation of a licence or permit, and
(q) psychiatric or medical referrals;]
F2[“person concerned” means a natural or legal person who is referred to in a report as a person to whom the relevant wrongdoing is attributed or with whom that person is associated;]
F2[“prescribed” means prescribed by order or regulations made by the Minister under this Act;]
F2[“prescribed person” means a person prescribed by order under section 7;]
“protected disclosure” shall be construed in accordance with section 5;
“public body” means—
(a) a Department of State,
(b) a local authority within the meaning of the Local Government Act 2001,
(c) any other entity established by or under any enactment (other than the Companies Acts), statutory instrument or charter or any scheme administered by a Minister of the Government,
(d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government,
(e) a subsidiary (within the meaning of the Companies Acts) of such a company,
(f) an entity established or appointed by the Government or a Minister of the Government,
(g) any entity (other than one within paragraph (e)) that is directly or indirectly controlled by an entity within any of paragraphs (b) to (f),
(h) an entity on which any functions are conferred by or under any enactment (other than the Companies Acts), statutory instrument or charter, or
F7[(i) a designated institution of higher education within the meaning of the Higher Education Authority Act 2022 that falls under paragraph (a) of section 53(1) of that Act and that is also a funded body within the meaning of that Act;]
“relevant information” shall be construed in accordance with section 5(2);
“relevant wrongdoing” shall be construed in accordance with subsections (3) to (5) of section 5;
F2[“report” or “to report” means the oral or written communication of information on relevant wrongdoings;]
F2[“reporting person” means a worker who makes a report in accordance with this Act;]
“trade union official” means an official of a trade union licensed under the Trade Union Acts 1871 to 1990;
F8[“worker” means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes
(a) an individual who is or was an employee,
(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,
(c) an individual who works or worked for a person in circumstances in which—
(i) the individual is introduced or supplied to do the work by a third person, and
(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,
(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,
(e) an individual who is or was a shareholder of an undertaking,
(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,
(g) an individual who is or was a volunteer,
(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,
(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to in paragraph (h)), and
(j) an individual who is deemed to be a worker by virtue of subsection (2)(b),
and any reference to a worker being employed or to employment shall be construed accordingly.]
F2[“work-related context” means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information;]
(2) For the purposes of this Act—
(a) an individual who is or was—
(i) a member of the Garda Síochána, or
(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956),
is deemed to be an employee,
(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker,
(c) “employer”—
(i) in relation to a member of the Garda Síochána (other than the Commissioner of the Garda Síochána), means the Commissioner of the Garda Síochána;
(ii) in relation to a civil servant (within the meaning aforesaid), has the meaning given by section 2A(2) of the Unfair Dismissals Act 1977;
(iii) in relation to a member of the Permanent Defence Force or the Reserve Defence Force (both within the meaning aforesaid), means the Minister for Defence.
F9[(3) A word or expression that is used in this Act and which is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.]
Annotations:
Amendments:
F2
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(iv), S.I. No. 510 of 2022.
F3
Deleted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(i)(I), S.I. No. 510 of 2022.
F4
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(i)(II), S.I. No. 510 of 2022.
F5
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(i)(III), S.I. No. 510 of 2022.
F6
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(ii), S.I. No. 510 of 2022.
F7
Substituted (10.11.2022) by Higher Education Authority Act 2022 (31/2022), s. 1(2), s. 145 and sch. 4, S.I. No. 554 of 2022, art. 2(k).
F8
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(a)(iii), S.I. No. 510 of 2022.
F9
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 4(b), S.I. No. 510 of 2022.
2 OJ No. L 119, 4.5.2016, p. 89.
3 OJ No. L 305, 26.11.2019, p. 17.
4 OJ No. L 347, 20.10.2020, p. 1.
5 OJ No. L 119, 4.5.2016, p. 1.
Expenses
4. The expenses incurred by the Minister under this Act shall be paid out of moneys provided by the Oireachtas.
F10[
Orders and regulations
4A. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.
(2) Without prejudice to any provision of this Act, regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
(3) Every order made under section 6(6) or 7(2) and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]
Annotations:
Amendments:
F10
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 5, S.I. No. 510 of 2022.
Editorial Notes:
E3
The section heading is taken from the amending section in the absence of one included in the amendment.
PART 2
Protected Disclosures
Protected disclosures
5. (1) For the purposes of this Act “protected disclosure” means, subject to F11[subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker F12[in a work-related context].
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross F13[mismanagement,]
F14[(h) that a breach has occurred, is occurring or is likely to occur, or]
F15[(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.]
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
F16[(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.]
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.
(7) F17[The motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure.
F18[(7A) F19[…]]
(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.
Annotations
Amendments:
F11
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(a), S.I. No. 510 of 2022.
F12
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s.6(b), S.I. No. 510 of 2022.
F13
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(c)(i), S.I. No. 510 of 2022.
F14
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(c)(ii), S.I. No. 510 of 2022.
F15
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(c)(iii), S.I. No. 510 of 2022.
F16
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(d), S.I. No. 510 of 2022.
F17
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 6(e), S.I. No. 510 of 2022.
F18
Inserted (9.06.2018) by European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018), reg. 7(c), in effect as per reg. 1(2).
F19
Repealed (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 3(a), S.I. No. 510 of 2022.
Editorial Notes:
E4
Previous affecting provision: subss. (1), (7) amended (9.06.2018) by European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018), reg. 7(a), (b), in effect as per reg. 1(2); amendments substituted (1.01.2023) as per F-notes above.
F20[
Anonymous reports
5A. (1) Without prejudice to the provisions of any other enactment relating to anonymous reporting of wrongdoing, nothing in this Act shall oblige any person to accept and follow-up on anonymous reports made in the manner specified in section 6 but a person may, if he or she considers it appropriate to do so, follow-up on a matter the subject of an anonymous report.
(2) A worker who makes a disclosure in the manner specified under section 6, 7, 8, 9 or 10 by way of an anonymous report and who is subsequently identified and penalised for having made the disclosure shall be treated for the purposes of this Act as having made a protected disclosure and shall be entitled to the same protections under Part 3 as a worker who has been penalised for having made a protected disclosure.]
Annotations:
Amendments:
F20
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 7, S.I. No. 510 of 2022.
Disclosure to employer or other responsible person
6. (1) A disclosure is made in the manner specified in this section if the worker makes it—
(a) to the worker’s employer, or
(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—
(i) to the conduct of a person other than the worker’s employer, or
(ii) to something for which a person other than the worker’s employer has legal responsibility,
to that other person.
(2) 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 for the purposes of this Act as making the disclosure to the employer.
F21[(3) Subject to subsections (5) to (8), for the purposes of enabling the making of reports, an employer with 50 or more employees shall, in accordance with this section and section 6A, establish, maintain and operate internal reporting channels and procedures for the making of such reports and for follow-up (in this Act referred to as “internal reporting channels and procedures”).
(4) The threshold of 50 employees provided for by subsection (3) shall not apply where the employer—
(a) is a public body, or
(b) falls within the scope of the Union acts referred to in Parts I.B and II of the Annex.
(5) Subsection (3) shall not come into effect for employers, other than public bodies and entities who fall within the scope of the Union acts referred to in Parts I.B and II of the Annex, with not less than 50 but not more than 249 employees until 17 December 2023.
(6) (a) Following the carrying out, by or on behalf of the Minister, of an appropriate risk assessment taking into account 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 Minister may, by order, provide that subsection (3) shall apply to such class or classes of employers with less than 50 employees as the Minister may specify in such order.
(b) Before making an order under this subsection, the Minister shall publish or cause to be published on a website maintained by or on behalf of the Minister and which is accessible to the public—
(i) a copy of the proposed order,
(ii) a copy of the risk assessment referred to in paragraph (a), and
(iii) a notice—
(I) stating that the Minister intends to make the proposed order,
(II) stating where, on the website concerned, the documents referred to in subparagraphs (i) and (ii) can be accessed,
(III) inviting the making, during the period specified by the Minister for this purpose, of submissions to the Minister in relation to the proposed order, and
(IV) stating the date of publication of the notice,
and having considered any submissions made in response to the invitation referred to in clause (III) may make the order, with or without amendment.
(c) Submissions made under paragraph (b)(iii)(III) shall be published or caused to be published by the Minister on a website maintained by or on behalf of the Minister and which is accessible to the public.
(d) The Minister shall notify the Commission of the European Union of the making, amendment or revocation of an order under this subsection, and the notification shall include the reasons for making, amending or revoking the order and the criteria used in carrying out the risk assessment referred to in paragraph (a).
(7) (a) The Minister may by regulations provide that the internal reporting channels and procedures required to be established, maintained and operated by employers to whom subsection (3) applies shall also enable the making of reports by other persons or such class or classes of other persons, as the Minister may prescribe, referred to in points (b), (c) and (d) of Article 4.1 and Article 4.2 of the Directive, who are in contact with the entity concerned in the context of their work-related activities.
(b) Where regulations are made under paragraph (a), this section shall apply, with any necessary modifications, to such other persons or class or classes of such other persons referred to in paragraph (a) as may be so prescribed, as if a reference in this section to employees were a reference to such other persons or class or classes of such other persons so prescribed.
(8) The Minister may, for the purpose of the calculation of the number of employees an employer has for the purposes of the application of this section, by regulation, provide for the methods to be applied by such class or classes of employers and in respect of such class or classes of employees as may be prescribed.
(9) Internal reporting channels and procedures may be—
(a) operated internally by a person or department designated for that purpose by an employer, or
(b) provided externally by a third party authorised in that behalf by an employer.
(10) (a) Subject to paragraph (b), employers with less than 250 employees (including employers in respect of whom an order has been made under subsection (6)) may share resources as regards the receipt of reports under this section and any investigation to be carried out as part of the process of follow-up.
(b) This subsection shall apply without prejudice to the obligations imposed on an employer to—
(i) maintain confidentiality in accordance with section 16,
(ii) diligently follow-up in accordance with section 6A(1)(d), and
(iii) provide feedback in accordance with section 6A(1)(e) and (f).
(11) Subject to subsection (12), section 6A shall apply to a report made to an employer.
(12) Where—
(a) a worker, who is or was an employee of a public body, makes a disclosure of relevant information to the public body, in the manner specified in this section, before the commencement of section 8 of the Protected Disclosures (Amendment) Act 2022, and
(b) the public body—
(i) has established procedures under section 21 (being that section as it stood before the commencement of section 28 of the Protected Disclosures (Amendment) Act 2022), and
(ii) has not completed its consideration of such disclosure in accordance with those procedures before the commencement of the said section 8,
then, where the worker so requests in writing, the public body shall, no later than 3 months after the date of such request, provide information to the worker on any actions taken or to be taken by that public body in relation to the relevant information concerned.]
Annotations:
Amendments:
F21
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 8, S.I. No. 510 of 2022.
F22[
Internal reporting channels and procedures
6A.(1) Internal reporting channels and procedures shall include the following:
(a) 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 referred to in section 6(9) and any designated person;
(b) acknowledgement, in writing, to the reporting person of receipt of the report not more than 7 days after receipt of it;
(c) 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) (in this section referred to as a “designated person”) who will maintain communication with the reporting person and, where necessary, request further information from, and provide feedback to, that reporting person;
(d) diligent follow-up by the designated person, which shall include at least the following:
(i) the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether there is prima facie evidence that a relevant wrongdoing may have occurred;
(ii) if, having carried out an initial assessment, the designated person decides that there is no prima facie evidence that a relevant wrongdoing may have occurred—
(I) 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
(II) notification of the reporting person, in writing, as soon as practicable, of the decision and the reasons for it;
(iii) if, having carried out an initial assessment, the designated person decides that there is prima facie evidence that a 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;
(e) 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 under paragraph (b) or, 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;
(f) 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 under paragraph (e);
(g) the provision to workers of clear and easily accessible information, in such form and manner as the employer considers appropriate for the purposes of this paragraph, regarding—
(i) the procedures applicable to the making of reports using the internal reporting channels and procedures,
(ii) where the employer accepts anonymous reports, the conditions pursuant to which those reports may be accepted and follow-up undertaken, and
(iii) the procedures for making a report to a prescribed person 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.
(2) Internal reporting channels and procedures shall enable reports to be made—
(a) in writing or orally, or both, and
(b) 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.
(3) Where, subject to the conditions referred to in subsection (1)(g)(ii), an employer accepts an anonymous report, unless prohibited by any other enactment, this section shall apply, with any necessary modifications, to such a report as if references in this section to a report were a reference to an anonymous report.
(4) Subject to this section, 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 a relevant wrongdoing though their work-related activities with the entity and the group.
(5) This section shall apply, with any necessary modifications, to a third party referred to in paragraph (b) of section 6(9) to the extent to which such third party is authorised as referred to in that paragraph as it applies to an employer who establishes internal reporting channels and procedures.]
Annotations:
Amendments:
F22
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 9, S.I. No. 510 of 2022.
Editorial Notes:
E5
The section heading is taken from the amending section in the absence of one included in the amendment.
Disclosure to prescribed person
7. (1) A disclosure is made in the manner specified in this section if the worker—
(a) makes the disclosure to a person prescribed under subsection (2) (a) F23[or the Commissioner], and
(b) reasonably believes—
(i) F24[in the case of a disclosure made to a person prescribed under subsection (2)(a), that the relevant wrongdoing] falls within the description of matters in respect of which the person is prescribed under subsection (2) (b), and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
(2) The Minister may by order—
(a) 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, and
(b) prescribe in respect of each prescribed person such description of matters as appears appropriate by reason of the nature of the responsibilities or functions of the person.
F25[(2A) For the purposes of enabling the making of reports by workers, prescribed persons 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 this Act referred to as “external reporting channels and procedures”).
(2B) Section 7A shall apply to a report made to a prescribed person.
(2C) Section 10B shall apply to a report made to the Commissioner.]
(3) F26[…]
Annotations
Amendments:
F23
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 10(a)(i), S.I. No. 510 of 2022.
F24
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 10(a)(ii), S.I. No. 510 of 2022.
F25
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 10(b), S.I. No. 510 of 2022.
F26
Repealed (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 3(b), S.I. No. 510 of 2022.
Editorial Notes:
E6
Power pursuant to subs. (2) exercised (24.09.2020) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 (S.I. No. 367 of 2020).
E7
Previous affecting provision: power pursuant to subs. (2) exercised (5.09.2016) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2016 (S.I. No. 490 of 2016); revoked (24.09.2020) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 (S.I. No. 367 of 2020), art. 3(c).
E8
Previous affecting provision: power pursuant to subs. (2) exercised (19.10.2015) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2015 (S.I. No. 448 of 2015); revoked (24.09.2020) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 (S.I. No. 367 of 2020), art. 3(b).
E9
Previous affecting provision: power pursuant to subs. (2) exercised (23.07.2014) by Protected Disclosures Act 2014 (Section 7(2)) Order 2014 (S.I. No. 339 of 2014); revoked (24.09.2020) by Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 (S.I. No. 367 of 2020), art. 3(a).
F27[
External reporting channels and procedures
7A. (1) External reporting channels and procedures shall include the following:
(a) 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 person reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person;
(b) diligent follow-up by the designated person, which shall include at least the following:
(i) the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether—
(I) there is prima facie evidence that a relevant wrongdoing may have occurred, and
(II) the report concerns matters that fall within the scope of the matters for which the prescribed person has responsibility by virtue of the functions conferred on the prescribed person by or under this or any other enactment;
(ii) if, having carried out an initial assessment, the prescribed person decides that there is no prima facie evidence that a relevant wrongdoing may have occurred—
(I) closure of the procedure, and
(II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
(iii) if, having carried out an initial assessment, the prescribed person 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—
(I) closure of the procedure, and
(II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
(iv) having carried out an initial assessment—
(I) closure of the procedure in the case of repetitive reports where the prescribed person decides that the report does not contain any meaningful new information about a relevant wrongdoing compared to a previous report (including any report made before the commencement of section 11 of the Protected Disclosures (Amendment) Act 2022 (in this clause referred to as a “past report”)) made or transmitted to the prescribed person 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, and
(II) notification of the reporting person, in writing, as soon as practicable, of the decision referred to in clause (I) and the reasons for it;
(v) if, having carried out an initial assessment, the prescribed person 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 referred to in subparagraph (i)(II), the taking of appropriate action, in accordance with the functions conferred on the prescribed person by or under this or any other enactment, to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned;
(vi) having carried out an initial assessment, if the prescribed person decides that the disclosure concerns matters that are not within the scope of the matters referred to in subparagraph (i)(II)—
(I) transmission of the report to—
(A) such other prescribed person or persons as the prescribed person considers appropriate, or
(B) where there is no such other prescribed person as referred to in subclause (A), the Commissioner,
and
(II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it;
(c) where the procedure has not otherwise been closed under subparagraph (ii), (iii) or (iv) of paragraph (b) and the report has not been transmitted to any other prescribed person or persons or the Commissioner, as the case may be, under subparagraph (vi)(I) of paragraph (b), the provision of feedback to the reporting person within a reasonable period, being not more than—
(i) where acknowledgement of receipt of the report was sent to the reporting person under paragraph (a)—
(I) 3 months from the date of such acknowledgement, or
(II) 6 months from the date of the acknowledgement in duly justified cases due to the particular nature and complexity of the report,
or
(ii) where no acknowledgement of receipt of the report was sent to the reporting person under paragraph (a)—
(I) 3 months from the date of expiry of the period of 7 days after the report was made, or
(II) 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;
(d) where feedback is not or is not likely to be provided to the reporting person within the period of 3 months referred to in paragraph (c)(i)(I), notification of the reporting person, in writing, as soon as practicable of the extension of that period under paragraph (c)(i)(II);
(e) 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 under paragraph (c);
(f) save as provided for by or under any enactment or rule of law and subject to subsection (4), communication, in writing, to the reporting person of the final outcome of any investigation triggered by the report;
(g) where a report concerns a breach, transmission as soon as practicable of the information contained in the report to relevant competent institutions, bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under Union law or the law of the State.
(2) A reporting person shall, in respect of the report concerned and any follow-up procedures, without prejudice to his or her rights under this Act and to such extent as may reasonably and lawfully be required for the purposes of this Act, cooperate with a prescribed person in relation to the performance by the prescribed person of the functions conferred on that prescribed person by or under this Act.
(3) Without prejudice to the period referred to in subparagraph (i)(I) or (II) or subparagraph (ii)(I) or (II) of paragraph (c), as applicable, of subsection (1), if necessary and appropriate, having due regard to the number of reports received by a prescribed person, the prescribed person may deal with reports of a serious relevant wrongdoing as a matter of priority.
(4) Subsection (1)(f) shall operate without prejudice to any legal obligations applying to the prescribed person concerned as regards confidentiality, legal professional privilege, privacy and data protection.
(5) External reporting channels and procedures shall be considered to be independent and autonomous if they meet the following criteria:
(a) 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;
(b) they enable the durable storage of information in accordance with section 16C to allow further investigations to be carried out.
(6) External reporting channels and procedures shall enable reports to be made to a prescribed person—
(a) in writing and orally, and
(b) 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 person or a designated person, as the case may be, within a reasonable period from the making of the request.
(7) Each prescribed person shall designate one or more than one member of staff (in this section referred to as a “designated person”) to be responsible for handling reports and, in particular, for—
(a) providing any person with information on the procedures for making a report in the manner specified in section 7,
(b) receiving and follow-up on reports made to the prescribed person, and
(c) maintaining communication with the reporting person for the purpose of providing feedback and, where necessary, requesting further information from that reporting person.
(8) Each prescribed person shall ensure that where a report is received by the prescribed person through channels and procedures other than those referred to in subsections (5) and (6) or is received by a member of staff other than a designated person—
(a) it shall be forwarded promptly and without modification to the designated person, and
(b) any information that might identify the reporting person or the person concerned shall not be disclosed by such member of staff.
(9) Each prescribed person shall ensure that designated persons receive specific training for the purposes of handling reports.
(10) Each prescribed person shall publish on a website maintained by or on behalf of such prescribed person in a separate, easily identifiable and accessible section at least the following information:
(a) the conditions for qualifying for protection under this Act;
(b) the contact details of the prescribed person to whom a report may be made in the manner specified in section 7, in particular the electronic and postal addresses and the telephone numbers for making the report, indicating whether the telephone conversations are recorded;
(c) the procedures applicable to the making of reports using the external reporting channels and procedures, including the manner in which the prescribed person 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;
(d) the confidentiality regime applicable to reports and, in particular, the information in relation to the processing of personal data in accordance with section 16B and under applicable data protection law;
(e) the nature of the follow-up to be given in relation to reports;
(f) 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;
(g) 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 pursuant to sections 14 and 15;
(h) contact details for the support services provided under section 21A;
(i) such other information as the Minister may specify in guidance under section 21.
(11) (a) Each prescribed person shall review the external channels and procedures regularly but at least once within 3 years after the date of first publication of information under subsection (10) and at least once in every period of 3 years after the first such review.
(b) In reviewing the external channels and procedures, the prescribed person shall take account of their operation and may consult with other prescribed persons 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 person considers necessary and appropriate.
(12) Where a report made to a prescribed person is an anonymous report, unless prohibited by or under any other enactment, this section shall apply, with any necessary modifications, to such a report as if references in this section to a report were a reference to an anonymous report.
(13) The provisions of this section (other than paragraphs (b)(vi) and (c) of subsection (1) and subsections (10) and (11)) shall apply, with any necessary modifications, to reports transmitted to a prescribed person under subsection (1)(b)(vi)(I) as those provisions apply to a report made to a prescribed person.
(14) Where a report is transmitted to a prescribed person under subsection (1)(b)(vi)(I), feedback shall be provided to the reporting person not later than—
(a) where acknowledgement of receipt of the report was sent to the reporting person under subsection (1)(a) (in this subsection referred to as the “original acknowledgement”)—
(i) 3 months from the date of the original acknowledgement, or
(ii) 6 months from the date of the original acknowledgement in duly justified cases due to the particular nature and complexity of the report,
or
(b) where there was no original acknowledgement—
(i) 3 months from the date of expiry of the period of 7 days after the report was made, or
(ii) 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.]
Annotations:
Amendments:
F27
Inserted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 11, S.I. No. 510 of 2022.
Disclosure to Minister
F28[8. (1) A disclosure is made in the manner specified in this section where the worker complies with the requirements specified in subsection (2) for making a report.
(2) A worker may make a report to a relevant Minister if—
(a) the worker is or was employed in a public body, and
(b) one or more than one of the following conditions are met:
(i) the worker has previously made a report of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no feedback has been provided to the worker in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be, 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;
(ii) the worker reasonably believes the head of the public body concerned is complicit in the relevant wrongdoing concerned;
(iii) 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.
(3) (a) The relevant Minister shall, without having considered the report or the information or any allegation contained therein, as soon as practicable but in any case not later than 10 days after receipt of a report, transmit the report to the Commissioner.
(b) Section 10D shall apply to a report transmitted to the Commissioner under paragraph (a).
(4) Each Minister of the Government shall make, or cause to be made, available clear and easily accessible information, in such form and manner as the Minister of the Government considers appropriate, including on a website maintained by or on behalf of the Minister of the Government concerned, regarding the making of reports in the manner specified in this section to the Minister of the Government or any Minister of State to whom any function vested in that Minister of the Government is delegated.
(5) In this section—
“head of the public body concerned” means—
(a) in relation to a Department of State, the Secretary General of the Department concerned,
(b) in relation to the Office of the Director of Public Prosecutions, the Director of Public Prosecutions,
(c) in relation to the Office of the Ombudsman, the Ombudsman,
(d) in relation to the Office of the Information Commissioner, the Information Commissioner,
(e) in relation to the Office of the Financial Services and Pensions Ombudsman, the Financial Services and Pensions Ombudsman,
(f) in relation to the Houses of the Oireachtas Service, the Chairman of Dáil Éireann,
(g) in relation to the Houses of the Oireachtas Commission, its chairperson,
(h) in relation to the Office of the Ombudsman for Children, the Ombudsman for Children,
(i) in relation to the Garda Síochána, the Garda Commissioner,
(j) in relation to the Garda Síochána Ombudsman Commission, its chairperson, and
(k) in relation to any other public body, the person who holds, or performs the functions of, the office of chief executive officer (by whatever name called) of the body;
“relevant Minister” means a Minister of the Government with responsibility for the public body concerned in whom functions, whether statutory or otherwise, as respects that public body, are vested, or a Minister of State to whom any such function is delegated.]
Annotations:
Amendments:
F28
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 12, S.I. No. 510 of 2022.
Disclosure to legal adviser
9. A disclosure is made in the manner specified in this section if it is made by the worker in the course of obtaining legal advice (including advice relating to the operation of this Act) from a barrister, solicitor, trade union official or official of an excepted body (within the meaning of section 6 of the Trade Union Act 1941).
Disclosure in other cases
10. F29[A disclosure is made in the manner specified in this section if—
(a) it is made otherwise than in the manner specified in sections 6 to 9,
(b) the worker reasonably believes that the information disclosed in the report, and any allegation contained in it, are substantially true, and
(c) the worker—
(i) has previously made a disclosure of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no appropriate action was taken in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be, or
(ii) reasonably believes that—
(I) 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
(II) if he or she were to make a report in the manner specified in section 7 or 8, as the case may be—
(A) there is a risk of penalisation, or
(B) 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.]
Annotations:
Amendments:
F29
Substituted (1.01.2023) by Protected Disclosures (Amendment) Act 2022 (27/2022), s. 13, S.I. No. 510 of 2022.
S.I. No. 367/2020 –
Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020
I, Michael McGrath, Minister for Public Expenditure and Reform, in exercise of the powers conferred on me by section 7 (2) of the Protected Disclosures Act 2014 (No. 14 of 2014), hereby order as follows:
1. This Order may be cited as the Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020.
2. Each person specified in column (2) of the Schedule is hereby prescribed to be the recipient of disclosures of relevant wrongdoings falling within the description of matters specified in column (3) of the Schedule in relation to the person.
3. The following are revoked:
(a) Protected Disclosures Act 2014 (Section 7(2)) Order 2014 ( S.I. No. 339 of 2014 );
(b) Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2015 ( S.I. No. 448 of 2015 );
(c) Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2016 ( S.I. No. 490 of 2016 ).
Schedule
Article 2
Reference Number
(1)
Prescribed Person
(2)
Description of matters in respect of which the person is prescribed
(3)
1
The chief executive officer of the Adoption Authority of Ireland
(a) All matters relating to the registration of accredited bodies under the Adoption Act 2010 (No. 26 of 2010).
(b) All matters relating to the register of intercountry adoptions kept and maintained under section 90 of the Adoption Act 2010 .
2
The chief executive officer of An tSeirbhís Oideachais Leanúnaigh agus Scileanna (Solas)
All matters relating to the regulation, registration, employment and education of apprentices as provided for by the Industrial Training Act 1967 (No. 5 of 1967) and the funding of further education and training as provided for by the Further Education and Training Act 2013 (No. 25 of 2013).
3
The chief executive officer of Bord na gCon
All matters relating to the management and development by Bord na gCon of the greyhound industry as provided for by the Greyhound Racing Acts 1958 to 2019.
4
The chief executive officer of the Broadcasting Authority of Ireland
(a) All matters relating to the licensing by the Authority of the broadcasting sector and the monitoring by the Authority of all licensed services to ensure that licence holders comply with their statutory obligations and the terms of their licences.
(b) All matters relating to the development by the Authority of codes and rules in relation to programming and advertising standards on television and radio.
5
An appropriate person (within the meaning of section 37 (1) of the Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013))
All matters relating to contraventions of financial services legislation (within the meaning of the Central Bank (Supervision and Enforcement) Act 2013 ).
6
The chief executive officer of the Charities Regulatory Authority
All matters relating to the regulation of charities pursuant to the Charities Act 2009 (No. 6 of 2009).
7
The chief executive officer of the Child and Family Agency
(a) All matters relating to the registration, supervision and inspection of early years services under Part VIIA of the Child Care Act 1991 (No. 17 of 1991) and regulations made under that Act.
(b) All matters relating to the registration and inspection of children’s residential centres under Part VIII of the Child Care Act 1991 and regulations made under that Act.
(c) All matters relating to the registration of children in receipt of education in a place other than a recognised school and the carrying out of assessments under section 14 of the Education (Welfare) Act 2000 (No. 22 of 2000).
8
A commissioner for Aviation Regulation
(a) All matters relating to the setting of the maximum level of airport and aviation terminal services charges.
(b) All matters relating to the licensing of the travel trade in the State, including the granting of licences to tour operators and travel agents.
(c) All matters relating to the licensing of airlines and approval of groundhandling services providers.
(d) All matters relating to the discharge of the State’s responsibilities for schedule co-ordination and slot allocation and the appointment of a schedules facilitator and slot co-ordinator.
(e) All matters relating to the monitoring and enforcement in the State of acts adopted by an institution of the European Union regarding air passenger rights and the provision of assistance to passengers with reduced mobility.
9
A Commissioner for Communications Regulation
(a) All matters (within the remit of the Commission) relating to the regulation of the electronic communications sector and the postal sector.
(b) All matters relating to the performance of the Commission’s consumer protection function (within the foregoing remit) in respect of the communications and postal sectors.
(c) All matters relating to the regulation of access to and use of the radio spectrum.
10
The Chief Executive of the Commissioners of Irish Lights
All matters relating to the superintendence, provision and management of aids to navigation and allied services for the safety of persons at sea.
11
The Head of Administration in the Commission for Railway Regulation
All matters relating to the regulation of railway safety in the State including matters relating to railway and cableway safety on passenger carrying systems and freight carrying systems where those systems interface with public roads.
12
A member of the Commission for Regulation of Utilities, or where there is more than one such member, the chairperson of the Commission
(a) All matters relating to the regulation of the electricity and natural gas markets in the State in accordance with the Electricity Regulation Act 1999 (No. 23 of 1999), the Gas (Interim) (Regulation) Act 2002 (No. 10 of 2002) and instruments made under those Acts.
(b) All matters relating to the regulation of the State’s public water system in accordance with the Water Services Acts 2007 to 2017.
13
A member of the Competition and Consumer Protection Commission
All matters falling within the remit of the Commission relating to the enforcement of consumer protection law, competition law and the review of mergers or acquisitions notified to the Commission.
14
The Comptroller and Auditor General
All matters relating to improper use of public funds and resources and matters concerning value for money in respect of entities that fall within the remit of the Comptroller and Auditor General.
15
The Group Human Resources Manager of Córas Iompair Éireann
All matters relating to the operation of public transport services provided by Iarnród Éireann, Bus ?tha Cliath and Bus Éireann.
16
The Director of Corporate Enforcement
All matters relating to the functions of the Director of Corporate Enforcement under section 949 of the Companies Act 2014 (No. 38 of 2014).
17
The Commissioner for Data Protection in the Data Protection Commission or where there is more than one such Commissioner, the chairperson of the Commission
All matters relating to compliance with the Data Protection Acts 1988 to 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20161 (General Data Protection Regulation) and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 ( S.I. No. 336 of 2011 ).
18
The Registrar of the Dental Council
All matters relating to the establishment and maintenance of the Register of Dentists and the Register of Dental Specialists, the adequacy, suitability and standards of dental education and inquiries into conduct of dentists, as provided for by the Dentists Act 1985 (No. 9 of 1985).
19
The Director General of the Environmental Protection Agency
All matters relating to the protection of the environment in the State.
20
The chief executive of the National Tourism Development Authority
All matters under the Tourist Traffic Acts 1939 to 2016 relating to-
(a) the registration, regulation and classification of tourist accommodation, and
(b) appeals regarding refusal or cancellation of registration of tourist accommodation.
21
The chief executive of the Food Safety Authority of Ireland
All matters relating to the regulation, enforcement and monitoring of food safety under the Food Safety Authority of Ireland Act 1998 (No. 29 of 1998).
22
A member of the Garda Síochána Ombudsman Commission
All matters relating to the functions of the Commission under Part 3 of the Garda Síochána Act 2005 (No. 20 of 2005).
23
The Chief Executive of the Health and Safety Authority
All matters associated with legislation enforced by the Health and Safety Authority and accreditation of laboratories, certification bodies and inspection bodies carried out by the Irish National Accreditation Board on behalf of the Health and Safety Authority.
24
The chief executive officer of the Health and Social Care Professionals Council
All matters relating to the protection of the public by the promotion of high standards of professional conduct, education, training and competence through the registration of health and social care professionals, as provided for by the Health and Social Care Professionals Act 2005 (No. 27 of 2005).
25
The chief executive officer of the Health Information and Quality Authority
All matters relating to the standards of safety and quality of health and social care services in the public and voluntary health care sectors, and social care services in the private health care sector, as provided for by the Health Act 2007 (No. 23 of 2007).
26
The Registrar and Chief Executive of the Health Insurance Authority
All matters under the Health Insurance Acts 1994 to 2019 relating to the carrying on of a health insurance business in the State, operation of the Risk Equalisation Fund and the provision of advice and information to consumers in relation to health insurance.
27
The Chief Executive of the Health Products Regulatory Authority
All matters relating to the protection and enhancement of public and animal health through the regulation of human and veterinary medicinal products under the Irish Medicines Board Acts 1995 and 2006 and the implementation of-
(a) acts adopted by an institution of the European Union, and
(b) legislation,
relating to blood and blood components, organ transplantation, tissues and cells.
28
The Chief Executive of the Higher Education Authority
(a) All matters relating to the planning and development of higher education and research in the State.
(b) All matters relating to funding for universities and certain institutions of higher education designated under the Higher Education Authority Act 1971 (No. 22 of 1971).
29
The chief executive officer of Horse Racing Ireland
All matters relating to the control of the operation of authorised bookmakers, the totalisator and the Registry Office.
30
The chief executive of Inland Fisheries Ireland
All matters relating to the protection, management and conservation of the inland fisheries resource and enforcement of the Fisheries Acts 1959 to 2019.
31
The Director of the Insolvency Service of Ireland
All matters relating to the regulation and supervision of personal insolvency practitioners, approved intermediaries and persons authorised to perform the functions of an approved intermediary in accordance with the Personal Insolvency Act 2012 (No. 44 of 2012).
32
The Official Assignee in Bankruptcy in the Insolvency Service of Ireland
All matters relating to the administration of bankruptcy estates under the Bankruptcy Act 1988 (No.27 of 1988).
33
The Controller of Intellectual Property
All matters within the functions of the Controller relating to copyright, the granting of patents, and the registration of industrial designs and trademarks under-
(a) the Patents Act 1992 (No. 1 of 1992), the Trade Marks Act 1996 (No. 6 of 1996), the Industrial Designs Act 2001 (No. 39 of 2001), the Copyright and Related Rights Act 2000 (No. 28 of 2000), the Knowledge Development Box (Certification of Inventions) Act 2017 (No. 6 of 2017) and the Copyright and other Intellectual Property Law Provisions Act 2019 (No. 19 of 2019),
(b) instruments made under those Acts, and
(c) acts adopted by an institution of the European Union or regulations made under the European Communities Act 1972 (No.27 of 1972).
34
The chief executive officer of the Irish Auditing and Accounting Supervisory Authority
All matters relating to the functions of the Irish Auditing and Accounting Supervisory Authority under section 905 of the Companies Act 2014 (No. 38 of 2014).
35
The company secretary of the Irish Aviation Authority
All matters relating to the management of Irish controlled airspace, the safety regulation of Irish civil aviation and the oversight of civil aviation security in the State.
36
A member of the Executive Committee of the Irish Coursing Club
All matters relating to the regulation by the Irish Coursing Club of coursing in the State under the Greyhound Industry Act 1958 (No. 12 of 1958).
37
The Director of Film Classification in the Irish Film Classification Office
All matters relating to the classification of films under the Censorship of Films Act 1923 (No. 23 of 1923) and the classification of video works and the licensing to sell or let on hire video recordings under the Video Recordings Act 1989 (No. 22 of 1989).
38
The chief executive officer of the Irish Horseracing Regulatory Board
All matters relating to functions under the Irish Horseracing Industry Act 1994 (No. 18 of 1994) carried out by the Irish Horseracing Regulatory Board.
39
The Director General of the Irish Takeover Panel
All matters relating to the supervision of takeovers and other relevant transactions under the Irish Takeover Panel Act 1997 (No. 5 of 1997).
40
The Director of Legal Metrology
All matters relating to the implementation and enforcement of the Metrology Acts 1980 to 1998, the Legal Metrology (Measuring Instruments) Act 2017 (No. 31 of 2017) and instruments made under those Acts.
41
The chief executive of the Legal Services Regulatory Authority
All matters relating to the regulation of the provision of legal services by legal practitioners in the State, including the maintenance and improvement of standards, the establishment and maintenance of the roll of practising barristers and the registers of legal partnerships, limited liability partnerships and multi-disciplinary practices, and the investigation of complaints against legal practitioners as provided for by the Legal Services Regulation Act 2015 (No. 65 of 2015).
42
The chief executive of each of the following local authorities:
Carlow County Council
Cavan County Council
Clare County Council
Cork City Council
Cork County Council
Donegal County Council
Dublin City Council
Dún Laoghaire-Rathdown County Council
Fingal County Council
Galway City Council
Galway County Council
Kerry County Council
Kildare County Council
Kilkenny County Council
Laois County Council
Leitrim County Council
Limerick City and County Council
Longford County Council
Louth County Council
Mayo County Council
Meath County Council
Monaghan County Council
Offaly County Council
Roscommon County Council
Sligo County Council
South Dublin County Council
Tipperary County Council
Waterford City and County Council
Westmeath County Council
Wexford County Council
Wicklow County Council
All matters relating to the functions of a local authority under the Local Government Acts 1925 to 2019 or any other enactment.
43
The Chief Executive Officer of the Marine Institute
All matters within the functions of the Marine Institute relating to co-ordination and promotion of, and assistance in, marine research and development, as provided for by the Marine Institute Act 1991 (No. 2 of 1991).
44
The chief executive officer of the Medical Council
All matters within the functions of the Medical Council relating to the regulation of the medical profession in the State, including the quality of undergraduate education of doctors and of postgraduate training of specialists, the registration of doctors and disciplinary procedures, and guidance on professional standards and ethical conduct, as provided for by the Medical Practitioners Act 2007 (No. 25 of 2007).
45
The Chief Executive of the Mental Health Commission
All matters relating to the establishment and maintenance of high standards in the delivery of mental health services and the protection of the interests of persons detained in approved centres under the Mental Health Act 2001 (No. 25 of 2001), and compliance with that Act, instruments made under that Act and codes of practice prepared by the Mental Health Commission for persons working in the mental health services.
46
The Regulator of the National Lottery
All matters relating to compliance by the operator of the National Lottery with the National Lottery Act 2013 (No. 13 of 2013) and the terms and conditions of the licence granted to the operator.
47
The chief executive of the National Milk Agency
All matters relating to regulation by the National Milk Agency of the supply of milk for liquid consumption.
48
The Secretary to the Board of the National Standards Authority of Ireland
All matters relating to the development, publication and dissemination of national, European and international standards, and all matters associated with product, practice or process certification carried out by the National Standards Authority of Ireland.
49
The chief executive officer of the National Transport Authority
(a) All matters relating to the regulation of public transport services in the State, including the licensing of bus passenger services, the entering into of contracts for the provision of bus, light railway and railway services and the regulation of public transport fares.
(b) All matters relating to the regulation of small public service vehicles (within the meaning of the Road Traffic Act 1961 (No. 24 of 1961)).
50
The chief executive officer of the Nursing and Midwifery Board of Ireland
All matters relating to the establishment and maintenance of registers of nurses and midwives, the provision of education and training of nurses and midwives and the investigation of complaints against registered nurses and registered midwives as provided for by the Nurses and Midwives Act 2011 (No. 41 of 2011).
51
The Director of the Oberstown Children Detention Campus
All matters relating to the control and supervision of a children detention school as provided for by the Children Act 2001 (No. 24 of 2001).
52
The Planning Regulator in the Office of the Planning Regulator
All matters relating to the functions of the Office of the Planning Regulator under section 31P of the Planning and Development Act 2000 (No. 30 of 2000).
53
The Director of Internal Audit in the Office of the Revenue Commissioners
All matters relating to the assessment, collection and management of taxes and duties and the implementation of customs controls in the State.
54
An Coimisinéir Teanga in Oifig Choimisinéir na dTeangacha Oifigiúla
All matters relating to the monitoring of compliance by public bodies with the Official Languages Act 2003 (No. 32 of 2003).
55
The Pensions Regulator in the Pensions Authority
All matters relating to the monitoring and supervision of the operation of the Pensions Act 1990 (No. 25 of 1990) (other than investigations by, and decisions of, the Financial Services and Pensions Ombudsman), including the activities of Personal Retirement Savings Account (PRSA) providers, the provision of PRSA products, the operation of PRSAs and the issue of guidelines and codes of practice for trustees of occupational pension schemes and providers of PRSAs.
56
The chief executive of the Personal Injuries Assessment Board
All matters relating to the functions of the Personal Injuries Assessment Board under section 54 of the Personal Injuries Assessment Board Act 2003 (No. 46 of 2003).
57
The Registrar of the Pharmaceutical Society of Ireland
All matters relating to the regulation of the profession of pharmacy and pharmacies in the State, including the Society’s responsibility for the supervision of compliance with the Pharmacy Act 2007 (No. 20 of 2007).
58
The chief executive officer of Pobal
All matters relating to Pobal’s role in the oversight and monitoring of grants and programmes, where the grant or programme is managed by Pobal.
59
The Director of the Pre-Hospital Emergency Care Council
All matters relating to standards, accreditation, education and training in relation to pre-hospital emergency care as provided for by the Pre-Hospital Emergency Care Council (Establishment) Order 2000 ( S.I. No. 109 of 2000 ).
60
The Press Ombudsman of the Press Council
All matters relating to complaints made to the Press Council in accordance with Schedule 2 to the Defamation Act 2009 (No. 31 of 2009).
61
The chief executive officer of the Private Security Authority
All matters relating to the licensing and regulation of providers of security services under the Private Security Services Act 2004 (No. 12 of 2004).
62
The Chief Executive Officer of the Property Services Regulatory Authority
All matters relating to the licensing, control and regulation of, and the investigation of complaints against, property service providers.
63
The Director of the Office of the Commission for Public Service Appointments
All matters relating to the setting of standards for recruitment and selection for public service appointments including the monitoring and auditing of public sector recruitment and selection processes.
64
The chief executive officer of Qualifications and Quality Assurance Authority of Ireland
All matters relating to quality assurance, validation of programmes of education and training, the making of awards, the delegation of authority to make awards, the establishment of the Code of Practice for the provision of programmes of education and training to international learners and the authorisation to use the international education mark, as provided for by the Qualifications and Quality Assurance (Education and Training) Act 2012 (No. 28 of 2012).
65
The Registrar of Beneficial Ownership of Companies and Industrial and Provident Societies
All matters relating to the registration of relevant entities under the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (S.I. 110 of 2019).
66
The Registrar of Companies
All matters relating to-
(a) the registration, and the enforcement of filing obligations, of companies under the Companies Act 2014 (No. 38 of 2014), and
(b) the registration of business names under the Registration of Business Names Act 1963 (No. 30 of 1963).
67
The Registrar of Friendly Societies
All matters relating to the registration, and the enforcement of filing obligations, of-
(a) trade unions under the Trade Union Acts 1871 to 1990,
(b) friendly societies under the Friendly Societies Acts 1896 to 2018, and
(c) industrial and provident societies, under the Industrial and Provident Societies Acts 1893 to 2018.
68
The Director of the Residential Tenancies Board
All matters, as provided for by the Residential Tenancies Acts 2004 to 2019, relating to the determination of disputes between landlords and tenants, the investigation and sanctioning of landlords, the operation of the residential tenancies register and the discharge of the functions of the Residential Tenancies Board.
69
The Director of Corporate Services in the Road Safety Authority
All matters relating to the promotion of road safety, accident and road safety research, driver testing and licensing, vehicle standards, the enforcement of statutory provisions relating to road haulage, the registration of driving instructors, driver vocational training and compulsory basic training for motorcyclists.
70
A member of the Sea-Fisheries Protection Authority
All matters, as provided for by the Sea-Fisheries and Maritime Jurisdiction Act 2006 (No. 8 of 2006), relating to the enforcement and implementation of sea-fisheries law and food safety law.
71
The chief executive of Sport Ireland
All matters relating to doping in sport pursuant to the Irish Anti-Doping Rules or World Anti-Doping Code.
72
The Secretary to the Standards in Public Office Commission
(a) All matters relating to the supervision of the Ethics in Public Office Acts 1995 and 2001 in so far as they apply to specified persons and to members of the Oireachtas who are not office holders, within the meaning of those Acts, including investigations and reports in relation to possible contraventions of those Acts.
(b) All matters relating to the supervision of the Electoral Acts 1992 to 2019 in regard to-
(i) the disclosure of donations to political parties, members of the Oireachtas, members of the European Parliament, and candidates at elections to Dáil Éireann, Seanad Éireann and the European Parliament,
(ii) the obligations of third parties,
(iii) the obligations of corporate donors,
(iv) the monitoring of limitations on expenditure by election candidates and political parties, and
(v) the expenditure of Exchequer Funding received by qualified political parties.
(c) All matters relating to the supervision of the Ministerial and Parliamentary Offices Act 1938 with regard to the expenditure of funding (Parliamentary Activities Allowance) received by the parliamentary leaders of qualifying parties and by independent members of the Oireachtas.
73
The Chief Executive of the State Examinations Commission
All matters relating to the operation of the Leaving Certificate, Leaving Certificate Vocational Programme, Leaving Certificate Applied and Junior Certificate examinations.
74
The Director of the Teaching Council
(a) All matters relating to the regulation of the teaching profession and the professional conduct of teachers.
(b) All matters relating to the establishment, promotion, maintenance and improvement of standards of-
(i) programmes of teacher education and training,
(ii) teaching, knowledge, skills and competencies of teachers in recognised primary and post-primary schools, and
(iii) professional conduct of teachers.
(c) All matters relating to the promotion of continuing education and training and professional development of teachers.
75
The chief executive officer of the National Roads Authority (described for operational purposes as Transport Infrastructure Ireland in accordance with the Roads Act (Operational Name of National Roads Authority) Order 2015 (No. 297 of 2015))
(a) All matters relating to the planning and supervision of construction and maintenance of national roads in the State, including preparing and arranging for the preparation of road designs, maintenance programmes, schemes for the provision of traffic signs on national roads, securing construction, improvement and maintenance works on national roads, allocating and paying grants for national roads and training, research or testing activities.
(b) All matters relating to the procurement of the provision of light rail and metro infrastructure in the State including the making of relevant bye-laws and the prosecution of related offences.
76
The Registrar of the Veterinary Council of Ireland
All matters relating to the regulation and management of the practice of veterinary medicine and veterinary nursing.
77
The chief executive officer of Water Safety Ireland
All matters relating to the services provided by Water Safety Ireland under the Water Safety Ireland (Establishment) Order 2019 ( S.I. No. 56 of 2019 ).
78
The chief executive officer of Waterways Ireland
All matters relating to the functions of Waterways Ireland as the implementation body responsible for the management, maintenance and development of the inland waterways in accordance with the British-Irish Agreement Act 1999 (No. 1 of 1999) and bye-laws made under the Shannon Navigation Acts 1990 and 2005 and the Canals Acts 1986 and 2018.
79
The Chief Executive of the Western Development Commission
All matters relating to the administration and business of the Commission and the functions of the Commission under the Western Development Commission Act 1998 (No. 42 of 1998).
80
The Director General of the Workplace Relations Commission
All matters relating to the functions of the Workplace Relations Commission or the Director General under the Workplace Relations Act 2015 (No. 16 of 2015).
/images/ls
GIVEN under my Official Seal,
24 September, 2020.
MICHAEL MCGRATH,
Minister for Public Expenditure and Reform.
1 OJ L119, 4.5.2016, p. 1.
Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Cookie List
.I. No. 464/2015 –
Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015.
WHEREAS the Workplace Relations Commission has prepared, under subsection (1) of section 42 of the Industrial Relations Act 1990 (No. 19 of 1990), a draft code of practice giving guidance and setting out best practice to help employers, workers and their representatives understand the law in regard to the disclosure of information regarding wrongdoing in the workplace and how to deal with the disclosure of such information. hereby order the following Regulations:
AND WHEREAS the Workplace Relations Commission has complied with subsection (2) of that section and has submitted the draft code of practice to the Minister for Jobs, Enterprise and Innovation.
NOW THEREFORE, I, Gerald Nash, Minister of State at the Department of Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by subsection (3) of that section, the Labour (Transfer of Departmental Administration and Ministerial Functions) Order 1993 ( S.I. No. 18 of 1993 ), the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order 1997 ( S.I. No. 305 of 1997 ) and the Jobs, Enterprise and Innovation (Delegation of Ministerial Functions) Order 2015 ( S.I. No. 426 of 2015 ), hereby order as follows:
1. This Order may be cited as the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015.
2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act 1990 (No. 19 of 1990).
SCHEDULE
Code of Practice on Protected Disclosures Act 2014
Introduction
1. Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft codes of practice by the Workplace Relations Commission for submission to the Minister for Jobs, Enterprise and Innovation. Codes of Practice are written guidelines, agreed in a consultative process, setting out guidance and best practice in regard to industrial relations practice and compliance.
2. The Commission has been requested by the Minister to prepare a Code of Practice on foot of the enactment of the Protected Disclosures Act 2014 both in order to assist in the practical implementation of the Act and give guidance on best principles to organisations and their workers.
Purpose
3. This Code is designed to:
• help employers, workers and their representatives understand the law in regard to the disclosure of information relating to wrongdoing which comes to the attention of workers in the workplace;
• give guidance and set out best practice in regard to how to deal with the disclosure of such information in the workplace.
4. This Code underpins the principle that:
• the disclosure of information relating to wrongdoing in the workplace is best dealt with in the first instance at workplace level. However there may be circumstances where this may not be appropriate;
• it is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing” in the workplace.
A sample policy is set out in the Appendix to the Code.
5. In preparing this Code of Practice, the Workplace Relations Commission consulted with Ibec, ICTU and relevant Government Departments.
Protected Disclosures Act 2014
6. The Protected Disclosures Act 2014 was enacted on 15 July 2014. The purpose of the Act is to provide a statutory framework within which workers can raise concerns and disclose information regarding potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so. It is important to note that in order to enjoy the protections of the Act, disclosures must be made in accordance with the provisions set out in the Act.
7. The Act provides for a stepped disclosure process with the objective that disclosure should be, wherever possible, made at workplace level to the most appropriate person.
General
What is Whistleblowing in the Workplace?
8. Whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which came to the worker’s attention in connection with the worker’s employment. Relevant wrong doings are broadly defined in the Act and include the following:
• Commission of an offence — has happened, is happening, or is likely to happen;
• Failure to comply with any legal obligation (other than one arising under the worker’s contract of employment);
• Miscarriage of justice;
• Health and safety of any individual;
• Misuse of public money;
• Gross mismanagement by public body;
• Damage to the environment;
• Destruction or concealment of information relating to any of the above.
9. It is important to note that a matter is not regarded as a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
What is meant by a protected disclosure?
10. The Act provides that if a disclosure is made by a worker in line with the channels set out in the legislation, a worker is protected from penalisation by the employer. Penalisation is defined in the Act and includes for example:
• Suspension/Layoff/Dismissal;
• Demotion;
• Transfer of duties, change of location, change in working hours, reduction in wages;
• Imposition of reprimand, discipline or other penalty;
• Unfair treatment;
• Discrimination;
• Harassment, threat of reprisal.
11. It should be noted that there are several pieces of legislation, particularly in the financial and medical sectors, where reporting of certain matters is mandatory. The Act protects voluntary reporting and does not absolve any worker from a pre-existing mandatory reporting obligation. Likewise where additional protections apply these also remain in force.
Does motivation matter?
12. The motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure. What is required is that a worker has a reasonable belief as to wrongdoing and that this wrongdoing has come to the worker’s attention in connection with his/her employment.
13. It is important to note that in situations where a worker makes a disclosure not in compliance with the Act, the protections under the Act will not be available to the worker. It is also important to note that deliberate false disclosure will not be protected and that a worker could leave him or herself open to disciplinary action in that regard.
Who is Covered?
14. The Act protects workers in all sectors of employment, both public and private, including:
• Employees;
• Civil and Public Servants;
• Members of an Garda Síochána and the Defence Forces;
• Contractors and Consultants;
• Agency Workers;
• Trainees, temporary workers, interns, and those on work experience.
How are protected disclosures made?
15. Whether a disclosure is protected or not will depend on the way in which the disclosure is made. The Act provides for a number of channels for those who wish to make a protected disclosure.
Channels of Disclosure
16. The Act sets out a number of distinct disclosure channels for potential whistle blowers. It provides for a tiered or “stepped” disclosure regime with a number of avenues open to workers, internal and external to the workplace. The first tier in the disclosure regime is internal, namely disclosure to the employer or some other responsible person. However there may be circumstances where this may not always be appropriate. The channels are as follows:
Disclosure to an Employer
17. It is in the best interests of all concerned in the workplace — management, workers and their representatives — that disclosures about wrongdoing are managed internally.
18. The Act provides for direct disclosure to the employer and this Code recognises the strong value to this route. A worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.
19. It is recommended, therefore, that all organisations should have an agreed whistleblowing policy in place to ensure that:
• Workers are assured of a safe and confidential avenue to make their disclosures;
• Employers are given the opportunity to address issues arising at the earliest possible opportunity or where the discloser is mistaken or unaware of all the facts surrounding the issues raised, and to take the opportunity to assure the worker that his/her concerns are unfounded;
• There is a clearly understood procedure governing the protected disclosure of information.
20. An effective policy helps workers understand how to make a disclosure and can make it easier for employers to find out when something goes wrong. It also makes it more likely that persons making disclosures will make disclosures “in house” and look to internal resolutions. The risk of not having a policy is that a worker will not feel protected and will be inclined to go an external route.
Disclosure to a Minister
21. A worker employed in a public body may make a protected disclosure to a Minister of the Government on whom any function relating to the public body is conferred rather than to their immediate employer. The evidential criteria for making a disclosure to the appropriate Minister is the same as that which applies to a disclosure made internally to an employer i.e. the worker reasonably believes that the information being disclosed shows or tends to show wrongdoing.
Other Channels — Disclosure outside of the Workplace
22. While this Code places a strong emphasis on the value of addressing whistleblowing concerns within the workplace, there is no obligation on a worker to disclose to the employer in the first instance. There may be circumstances where it is appropriate for a worker to make a disclosure externally. These circumstances include the employer failing to act on the information being disclosed or the worker does not wish to avail of the internal channel route. This is provided for in the Act.
23. It should be noted that the evidential criteria for making an external disclosure is set at a higher level than that applying to internal disclosure. Disclosure to a prescribed person (e.g. Regulatory Bodies) will only be protected when the person making the disclosure believes that the information disclosed, and any allegation contained in it, is substantially true.
24. The Act sets out a number of external channels:
Prescribed Persons
25. The Act provides for the Minister to prescribe a list of “prescribed persons” (in effect Regulatory Bodies that have regulatory inspection and enforcement functions in their sector) whose roles and responsibilities are such as to be deemed appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Examples of such Bodies are the Central Bank, The Health and Safety Authority and the WRC. A full list of relevant Statutory Bodies has been prescribed in Statutory Instrument No. 339 of 21st July 2014.
Legal Advisor
26. A disclosure made in the course of obtaining legal advice, including advice relating to the operation of the Act, from a barrister, solicitor or trade union official is protected.
Other Persons
27. There is also provision for disclosure in other circumstances i.e. disclosure potentially in the public domain, such as to the media. The evidential qualifying criteria are set at a higher level. In order for such a disclosure to be protected a worker must:
• Reasonably believe that the information disclosed and any allegation is substantially true;
• The disclosure is not made for personal gain;
• The making of the disclosure in public is in all the circumstances, reasonable.
28. In addition one or more of the following conditions must be met:
• At the time of making the disclosure the worker reasonably believes that he/she will be subjected to penalisation by the employer if they make the disclosure under the internal process or to a “Prescribed Person”;
• In a case where there is no appropriate prescribed person (Regulatory Body) in regard to the wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if the disclosure is made directly to the employer;
• No action was taken in regard to a previous disclosure of the same nature made by the worker;
• The relevant wrongdoing is of an exceptionally serious nature.
Support and Advice
29. When a worker seeks advice from a trade union, barrister or solicitor about the operation of the legislation, this discussion is also a “protected disclosure”. It is sufficient to be protected that the purpose of the discussion was that the worker was seeking advice about the operation of the legislation. Advice on the operation of the Act can be sought at any stage including in advance of making a protected disclosure and during the subsequent process in both internal and external channels.
What is the difference between a grievance and a protected disclosure?
30. A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure.
A protected disclosure is where a worker has information about a relevant wrongdoing.
31. It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation’s Whistleblowing Policy (see below) should make this distinction clear.
Examples of a grievance
• Complaint around selection criteria for a promotional post;
• Complaint around allocation of overtime.
Example of a whistleblowing disclosure
• In a hazardous work situation information regarding a failure to provide or wear protective clothing and adhere to health and safety guidelines;
• Information about the improper use of funds, bribery and fraud.
Confidentiality
32. All reasonable steps must be taken to protect the identity of the person making the disclosure and to ensure the disclosures are treated in confidence. The exceptions to this are (a) where the worker making the disclosure has made it clear that he/she has no objection to his/her identity being disclosed and (b) the identity of the person making the disclosure is critical to an investigation of the matter raised. An example of this might be where the worker making the disclosure is called as a witness in the context of an investigation.
Can a disclosure be made anonymously?
33. Yes, a disclosure may be made anonymously. It should be noted that a disclosure made anonymously may potentially, of itself, present a barrier to the effective internal investigation of the matter reported on.
34. Focus should be on the reported wrongdoing and not on the person making the disclosure.
Can a disclosure made before the commencement of the Act be protected?
35. Yes, a disclosure made before the Act coming into force (14 July 2014) may still be a protected disclosure provided that penalisation or negative consequences for making the disclosure are suffered by the worker subsequent to the enactment of the Act.
What about disclosure in regard to wrongdoings occurring outside the State?
36. A disclosure made outside the State may qualify for protection. It is immaterial whether a relevant wrongdoing occurred or occurs in the State or elsewhere.
Workplace Whistleblowing Policy
37. It is mandatory for all public bodies, and highly recommended for all employments, to have in place an agreed Whistleblowing Policy setting out an accessible procedure for making protected disclosures and underpinning a culture of encouraging workers to speak out if they have genuine concerns.
38. As best practice, a policy should be developed and put in place on foot of agreement with all stakeholders in the organisation i.e. management, workers and their representatives. In general terms it should be simple and easy to understand, and set out a clear “roadmap” for dealing with protected disclosures.
39. While this Code of Practice does not propose to be prescriptive in regard to what a policy should look like as this is a matter for the stakeholders, the following elements are given as guidance in regard to matters which should be addressed in a policy:
Overview
• The policy should make clear that the organisation is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner when they discover information which they believe shows wrongdoing. Essentially the policy should underpin that the organisational culture is such that workers will feel comfortable and confident about reporting wrongdoing;
• The policy should make clear that the organisation will not tolerate the penalisation of a worker who discloses information in line with the policy;
• The policy should make clear that the organisation is committed to addressing concerns raised in an effective and timely manner.
Scope of the Policy
40. The policy should specify to whom it applies. The Act defines workers to include employees, Civil and Public Servants, Members of An Garda Síochána and the Defence Forces, Contractors and Consultants, Agency Workers, Trainees, temporary workers, interns and those on work experience.
Types of concerns that can be raised as a protected disclosure
41. The policy should give guidance on the types of wrongdoing that may be reported e.g. financial irregularity, or suspected criminal offences.
Concerns that may not form the basis for a protected disclosure
42. Matters for which appropriate procedures exist, for example, Grievance Procedures in regard to a worker’s or employee’s own contract of employment.
43. It is important that the distinction between procedures governing whistleblowing and other procedures, such as a Grievance Procedure, is made clear in the policy.
Raising a disclosure
44. Factors to be considered in prescribing a reporting structure for a protected disclosure include:
• To whom a disclosure should be made e.g. to an immediate manager in the first instance but with a clear option of bypassing the line management structure or disclosing to a higher level if appropriate. In larger organisations, consideration should be given to nominating a designated officer or officers, appropriately authorised, to act as a complaint recipient.
• The size of the organisation: Arrangements for a large organisation will differ from those of a small organisation.
• A concern can be raised verbally or in writing. Workers can be allowed to disclose verbally in the first instance, to be followed with a written communication if necessary. In the case of verbal disclosures, it is recommended that a written record is kept of the disclosure with due regard to confidentiality obligations.
Responses to Protected Disclosures
45. In the case of a concern expressed verbally, the person to whom the disclosure is expressed should listen carefully and give full attention to the person. In the case of a written disclosure, the matter should be acknowledged as quickly as possible.
46. The first matter that needs attention is assessing whether or not the concern raised should be treated as a protected disclosure or is more appropriate to another procedure, for example, Grievance or Dignity in the Workplace procedure. In the event that the employer does not consider the matter to be a protected disclosure, the Act provides for alternative channels of disclosure.
47. Where the matter is being treated as a protected disclosure, further communication with the discloser may be appropriate to clarify or seek further information. It may be possible that the matter can be addressed to the satisfaction of the discloser at this point on foot of a discussion and clarification.
48. A further examination or an investigation may be appropriate. Any examination or investigation should be conducted using objective and fair principles with regard to the principles of natural justice. It is important that the outcome or conclusion of any such examination or investigation is communicated to the worker making the disclosure. In certain circumstances, a referral to the appropriate external enforcement agency or An Garda Síochána may be appropriate.
Communication/Feedback
49. It is important that the worker making the disclosure has a sense that the complaint is being taken seriously and that action is being taken, not least with a view to ensuring that the concerns raised are dealt with internally. The organisation should ensure that as much feedback as possible is given having regard to sensitivities around, for example, confidentiality. Information in regard to timelines for responses/actions should be communicated to the discloser.
Confidentiality
50. It is important that a worker making a disclosure should be assured that every effort will be made to maintain confidentiality. It is advisable to point out that there may be circumstances where confidentiality cannot be maintained, for example in the context of an investigation. It is important to note however that all reasonable steps must be taken to maintain confidentiality.
Representation/Supports
51. When a worker seeks advice from a trade union official, solicitor or barrister, this discussion is treated as a protected disclosure including at early stages in contemplation of making a protected disclosure or seeking information on the operation of the legislation. The trade union official, solicitor or barrister is bound by a general duty of confidentiality. In regard to confidentiality, it is important that there should be an awareness of respecting sensitive company information, which, while unrelated to the disclosure, may be disclosed in the course of a consultation or investigation process.
52. Any worker making a protected disclosure or any worker against whom an allegation has been made must have their constitutional right to natural justice and fair procedures upheld in accordance with all relevant employment legislation. In this regard, appropriate representation, if requested, should be accommodated.
Internal Redress
53. The organisation should make it clear that any penalisation of a worker making a protected disclosure will not be tolerated and that the organisation’s disciplinary procedure will be invoked against any worker or manager who engages in penalisation or threatened penalisation of a worker making a disclosure.
Alternative Channel for Public Servants
54. The policy should recognise that where a worker is employed by a public body, there may be circumstances where a concern can be disclosed to the appropriate Minister.
External Disclosure
55. The policy should recognise that, while the organisation is committed to addressing concerns in house to the greatest extent possible, there may be circumstances where a concern can be disclosed externally to a Prescribed Person or a person other than a Prescribed Person.
56. The policy should give guidance on accessing the relevant external channels.
57. The worker making the disclosure should ensure that the disclosure is limited to information relevant to the wrongdoing and does not unnecessarily disclose confidential company or confidential commercial information unrelated to the wrongdoing.
Awareness
58. To be effective, a Whistleblowing Policy should ensure that workers are aware of and, critically, trust the arrangements put in place. The policy should be widely promoted throughout the organisation to maximise awareness. This is important to underpin a culture of open and safe disclosure. There is value in relevant staff with specific responsibilities (for example designated officers and senior managers) being trained in the operation of the policy and on how to handle concerns.
Review
59. It is recommended that the policy be reviewed periodically to assess its effectiveness.
What are the Protections for a Worker making a disclosure?
60. The Act provides for a number of protections.
61. Employees, as defined in the Protected Disclosures Act, have access to the State’s dispute resolution machinery as follows:
• Protection from Penalisation
If an employee feels that the employer has penalised him/her for making a protected disclosure, the employee may refer the matter to an Adjudicator of the Workplace Relations Commission. Generally speaking such action by the employer would encompass any action which could be interpreted as penalisation by the employer against the employee for having made a protected disclosure.
An Adjudicator will hear the case and issue a decision. A decision could declare that the complaint was not well founded, or if declared well founded, require the employer to take a specified course of action, including payment of compensation. The decision of an Adjudicator may be appealed to the Labour Court.
• Protection from Dismissal
The Act provides that an employee who is penalised by dismissal following the making of a protected disclosure may claim that he/she has been unfairly dismissed. There are extensive protections set out in the Unfair Dismissals Acts for protection against unfair dismissals. In addition (a) there is no minimum service requirement to avail of the Unfair Dismissal Acts arising from making a protected disclosure and (b) compensation for unfair dismissal on grounds of making a protected disclosure can be up to a maximum of 5 years remuneration.
Furthermore, where an employee is dismissed on foot of having made a protected disclosure, protection in the form of “interim relief” on application to the Circuit Court is available to prevent an unfair dismissal proceeding in advance of an outcome being determined.
62. The following protections are available to all workers making a protected disclosure:
• Right of take action through the Civil Courts;
• Immunity from Civil Liability where a worker making a disclosure suffers detriment;
• Making a protected disclosure does not constitute a criminal offence;
• Right of confidentiality.
Appendix
Model Whistleblowing Policy
What is Whistleblowing?
Whistleblowing occurs when a worker raises a concern or discloses information which relates to wrongdoing, illegal practices or unethical conduct which has come to his/her attention through work.
Our whistle-blowing policy is intended to encourage and enable workers to raise concerns within our workplace rather than overlooking a problem or “blowing the whistle” externally. Under this policy a worker is entitled to raise concerns or disclose information without fear of penalisation or threat of less favourable treatment, discrimination or disadvantage.
Our Commitment
This organisation is committed to maintaining an open culture with the highest standards of honesty and accountability where our workers can report any concerns in confidence.
Who does the policy apply to-
This policy applies to all of our workers including our employees at all levels. (References as appropriate to e.g. agency workers, trainees, apprentices, interns etc.).
It is important to note that should you have a concern in relation to your own employment or personal circumstances in the workplace it should be dealt with by way of our Grievance Procedure. Likewise concerns arising in regard to workplace relationships should generally be dealt with through our Dignity in the Workplace policy.
It is also important to note that this policy does not replace any legal reporting or disclosure requirements. Where statutory reporting requirements and procedures exist these must be complied with fully.
Aims of the Policy
• To encourage you to feel confident and safe in raising concerns and disclosing information;
• To provide avenues for you to raise concerns in confidence and receive feedback on any action taken;
• To ensure that you receive a response where possible to your concerns and information disclosed;
• To reassure you that you will be protected from penalisation or any threat of penalisation.
What types of concerns can be raised?
A concern or disclosure should relate to a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which has come to your attention in connection with your employment and about which you have a reasonable belief of wrongdoing.
What types of concerns should not be raised under this Procedure?
A personal concern, for example a grievance around your own contract of employment would not be regarded as a whistleblowing concern and would be more appropriately processed through our Grievance Procedure.
Safeguards and Penalisation
A worker who makes a disclosure and has a reasonable belief of wrongdoing will not be penalised by this organisation, even if the concerns or disclosure turn out to be unfounded.
Penalisation includes suspension/dismissal, disciplinary action, demotion, discrimination, threats or other unfavourable treatment arising from raising a concern or making a disclosure on the basis of reasonable belief for doing so. If you believe that you are being subjected to penalisation as a result of making a disclosure under this procedure, you should inform your manager/senior manager immediately.
Workers who penalise or retaliate against those who have raised concerns under this policy will be subject to disciplinary action.
Workers are not expected to prove the truth of an allegation. However they must have a reasonable belief that there are grounds for their concern. It should be noted that appropriate disciplinary action may be taken against any worker who is found to have raised a concern or raised a disclosure with malicious intent.
Confidentiality
This organisation is committed to protecting the identity of the worker raising a concern and ensures that relevant disclosures are treated in confidence. The focus will be on the wrongdoing rather than the person making the disclosure. However there are circumstances, as outlined in the Act, where confidentiality cannot be maintained particularly in a situation where the worker is participating in an investigation into the matter being disclosed. Should such a situation arise, we will make every effort to inform the worker that his/her identity may be disclosed.
Raising a Concern Anonymously
A concern may be raised anonymously. However on a practical level it may be difficult to investigate such a concern. We would encourage workers to put their names to allegations, with our assurance of confidentiality where possible, in order to facilitate appropriate follow-up. This will make it easier for us to assess the disclosure and take appropriate action including an investigation if necessary.
Procedure
Raising a Concern
Who should you raise your concern with?
As a first step, appropriate concerns should be raised with your immediate manager or their superior. However should you not wish to use this route, for example given the seriousness and sensitivity of the issues involved, you should approach senior management.
How to raise a concern
Concerns may be raised verbally or in writing. Should you raise a concern verbally we will keep a written record of our conversation and provide you with a copy after our meeting. Should you raise a concern in writing we would ask you to give the background and history of the concern, giving relevant details, insofar as is possible, such as dates, sequence of events and description of circumstances.
The earlier you express the concern the easier it will be for us to deal with the matter quickly.
Having raised your concern with us, we will arrange a meeting to discuss the matter with you on a strictly confidential basis. We will need to clarify at this point if the concern is appropriate to this procedure or is a matter more appropriate to our other procedures, for example our Grievance or Dignity in the Workplace procedures. You can choose whether or not you want to be accompanied by a colleague or a trade union representative. In regard to confidentiality, it is important that there should be an awareness of respecting sensitive company information, which, while unrelated to the disclosure, may be disclosed in the course of a consultation or investigation process.
How we will deal with your disclosure
Having met with you in regard to your concern and clarified that the matter is in fact appropriate to this procedure, we will carry out an initial assessment to examine what actions we need to take to deal with the matter. This may involve simply clarifying certain matters, clearing up misunderstandings or resolving the matter by agreed action without the need for an investigation.
If, on foot of the initial assessment, we conclude that there are grounds for concern that cannot be dealt with at this point, we will conduct an investigation which will be carried out fairly and objectively. The form and scope of the investigation will depend on the subject matter of the disclosure.
Disclosures may, in the light of the seriousness of the matters raised, be referred immediately to the appropriate authorities. Likewise if urgent action is required (for example to remove a health and safety hazard), this action will be taken.
It is important to us that you feel assured that a disclosure made by you under this policy is taken seriously and that you are kept informed of steps being taken by us in response your disclosure. In this regard we undertake to communicate with you as follows:
• We will acknowledge receipt of your disclosure and arrange to meet with you as outlined above;
• We will inform you of how we propose to investigate the matter and keep you informed of actions, where possible, in that regard including the outcome of any investigation, and, should it be the case, why no further investigation will take place. However it is important to note that sometimes the need for confidentiality and legal considerations may prevent us from giving you specific details of an investigation.
• We will inform you of the likely time scales in regard to each of the steps being taken but in any event we commit to dealing with the matter as quickly as practicable.
It is possible that in the course of an investigation you may be asked to clarify certain matters. To maximise confidentiality such a meeting can take place off site and you can choose whether or not to be accompanied by a colleague or trade union representative.
Where a concern is raised or a disclosure is made in accordance with this policy, but the allegation is subsequently not upheld by an investigation, no action will be taken against the worker making the disclosure and the worker will protected against any penalisation. It is important to note that if an unfounded allegation is found to have been with malicious intent, then disciplinary action may be taken.
How the matter can be taken further
The aim of this Policy is to provide an avenue within this workplace to deal with concerns or disclosures in regard to wrongdoing. We are confident that issues can be dealt with “in house” and we strongly encourage workers to report such concerns internally.
We acknowledge that there may be circumstances where an employee wants to make a disclosure externally, and the legislation governing disclosures — The Protected Disclosures Act 2014 — provides for a number of avenues in this regard.
It is important to note however that while you need only have a reasonable belief as to wrong doing to make a disclosure internally, if you are considering an external disclosure, different and potentially more onerous obligations apply depending on to whom the disclosure is made.
Communication, Monitoring and Review
This policy will be communicated as appropriate and will be subject to regular monitoring and review in consultation with our workforce and their representatives.
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GIVEN under my hand
28 October 2015.
GERALD NASH,
Minister of State at the Department of Jobs, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
The effect of this Order is to declare that the draft Code of Practice set out in the Schedule to this Order is a Code of Practice for the purposes of the Industrial Relations Act 1990 .