Qualifying Disclosures
Whistleblowing
The legislation on protected disclosure seeks to protect employees and others who disclose information in good faith for the benefit of the public or part of the public. The disclosure might relate to issues of safety, environmental damage, health hazards to fellow workers or the public. It might apply to financial wrongdoing, fraud or gross inefficiency.
There are a number of pieces of legislation which apply both to employees and a wider category of people. More general legislation was enacted in 2014, the Protected Disclosures in the Public Interest Act. The matters disclosed will generally be criminal but need not necessarily be so. They may be matters which are in the public interest in the sense that it is in the public interest to discover and remedy the practice or activity concerned.
The general legislation defines employees in broad terms as persons performing works or services. It accordingly includes independent contractors, persons provided by the agencies. The legislation replaces existing sectoral legislation, protects the disclosures, the disclosure regarding conduct of an employer made by an employee who reasonably believes in making the disclosure that the information concerned shows or tends to show the commission of a criminal offence, failure to comply with legal obligation, a miscarriage of justice, threat to health or safety, damage to the environment, misuse of public funds or public mismanagement/maladministration is being or is likely to be committed. The wrongdoing may occur inside or outside the State. The wrongdoing may predate the commencement of the legislation.
2022 Act
The purpose of this legislation is to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. This Directive provides for a set of minimum standards for the protection of whistleblowers across the European Union. The legislation amends Ireland’s existing national whistleblower protection law – the Protected Disclosures Act 2014 (“the 2014 Act”) – to give effect to the provisions of the Directive. The legislation also provides for the establishment of an Office of the Protected Disclosures Commissioner in the Office of the Ombudsman.
The core objectives of the 2022 Act are to:
- Amend the 2014 Act to ensure that Ireland’s national whistle-blower protection legislation remains as effective as possible.
- Give effect to the transposition of Directive 2019/1937 in
- Expand the material scope of the 2014 Act so that “relevant wrongdoings” that may be reported under the Act include all of the EU laws listed in the Directive.
- Expand the personal scope of the 2014 Act to include: volunteers; shareholders; persons belonging to the administrative, management or supervisory body of an undertaking; and persons whose work-based relationship is yet to begin in cases where information on relevant wrongdoings has been acquired during a recruitment process or other pre-contractual negotiation.
- Provide that all undertakings in the private sector with 50 or more employees and all public bodies shall establish formal channels and procedures for the making of protected disclosures by their workers. These channels and procedures shall provide for acknowledgement of all reports within 7 days, diligent follow-up of the reports received and the provision of feedback to the reporting person within 3 months.
- Provide that all recipients designated by law shall establish formal channels and procedures for the making of protected disclosures by workers in the sectors they regulate or These channels and procedures shall provide for acknowledgement of all reports within 7 days, diligent follow-up of the reports received, the provision of feedback to the Protected Disclosures Act 2014.
Persons Covered
The Act applies to a worker. A “worker” means an individual who—
- is an employee,
- works or worked under any other contract, 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,
- works or worked for a person in circumstances in which the individual is introduced or supplied to do the work by a third person, and 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,
- 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, or by an educational establishment on a course provided by the establishment.
- volunteers;
- shareholders;
- members of the administrative, management or supervisory body of a company or other business
- and persons whose work-based relationship is yet to begin
An individual who is or was a member of the Garda Síochána, or a civil servant is deemed to be an employee. An individual who is or was a member of the Permanent Defence Force or the Reserve Defence Force is deemed to be a worker,
“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
ersons who make reports anonymously remain entitled to all of the protections of the legislation if their identity is subsequently revealed and they suffer penalisation for having made a protected disclosure. Nothing obliges an employer who receives an anonymous disclosure to accept and follow up on said reports.
Wrongdoing Covered
A “protected disclosure” is a disclosure of information about wrongdoing made by a worker in one of the ways specified below. “Information about wrongdoing” must be such that in the reasonable belief of the worker, it tends to show one or more of the following types of wrongdoing, which it came to the attention of the worker in connection with his or her employment.
The types of wrongdoing are
- that an offence has been, is being or is likely to be committed,
- 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,
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered,
- that the environment has been, is being or is likely to be damaged,
- 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,
- that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
- 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.
- hat a breach has occurred, is occurring or is likely to occur, or
- that information tending to show any matter falling within any of the preceding categories 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.
It is immaterial whether the 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.
EU Breach Wrongdoing
Wrongdoing includes breach of listed EU laws. This includes laws in the following areas:
- public procurement;
- financial services, products and markets, and prevention of money laundering and terrorist financing;
- product safety and compliance;
- transport safety;
- protection of the environment;
- radiation protection and nuclear safety;
- food and feed safety and animal health and welfare;
- public health;
- consumer protection;
- protection of privacy and personal data, and security of network and information systems;
- financial interests of the European Union
Personal Not Included
A matter solely concerning a personal employment grievance that only affects the reporting person is not a protected disclosure. 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,
is not relevant wrongdoing for the purposes of the 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 which the reporting person has access.
Wrongdoing is not covered 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.
General
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.
Generally, the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.
Where it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest and this is presumed to be the case.