Protection for whistleblowers

Whistleblowing is more formally known as making a 'protected disclosure’. The law protects you if you raise concerns about possible wrongdoing in a workplace you currently or previously worked in. You are also protected if you are dismissed or penalised for reporting possible wrongdoing.

The laws covering whistleblowing

People who raise concerns about possible wrongdoing in the workplace are protected by the Protected Disclosures Act 2014 (‘the 2014 Act’). It was updated by the Protected Disclosures (Amendment) Act 2022 (‘the 2022 Act). The 2022 Act also transposes the EU Whistleblowing Directive (pdf) into Irish law.

The information below includes the new protections brought in under the 2022 Act. The new protections commenced on 1 January 2023.

You make a protected disclosure if you are a worker and you disclose relevant information in a particular way. Information is relevant if it came to your attention in a work-related context and you reasonably believe that it tends to show wrongdoing.

What counts as wrongdoing?

Wrongdoing is widely defined and includes:

• Criminal offences
• Failure to comply with legal obligations
• Breaches of certain European Union law
• Endangering the health and safety of individuals
• Damaging the environment
• Miscarriage of justice
• Misuse of public funds
• Oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body
• Concealment or destruction of information about any of the above wrongdoing or any attempt to conceal or destroy such information

Wrongdoing can take place in or outside Ireland.

Even if the information is proved to be incorrect, you are still protected, provided you had a reasonable belief in the information.

What does not usually count as wrongdoing?

The following are generally not considered wrongdoings:

• Workplace grievances which are exclusively personal
• Disputes with your employer about your contract
• Information that is disclosed in a legally privileged setting
• If it is your job to detect, investigate or prosecute any wrongdoing and if the wrongdoing reported relates to a person other than the employer. For example, a member of An Garda Síochána who reports wrongdoing by a person outside of An Garda Síochána will not be covered by this Act.

You should be aware that the above lists are not exhaustive and other examples may exist. If you need help making a protected disclosure or reporting a wrongdoing you can get free support from Transparency International Ireland.

The following workers are protected:

• Employees or former employees
• Trainees
• People working under a contract for services
• Independent contractors
• Agency workers
• People on work experience
• Unpaid trainees
• Board members
• Shareholders
• Volunteers
• Job applicants

You will also be protected under the Acts if you make an anonymous disclosure but your identity becomes known and you are penalised for having made a protected disclosure.

Remaining anonymous

In general, people who receive protected disclosures or who subsequently deal with them cannot disclose any information which may identify the person who made the disclosure without the person’s consent.

There are some exceptions to this, for example, if identifying the whistleblower is essential to the effective investigation of the matter or is required to prevent crime or risks to State security, public health or the environment.

A person should be notified that their identity has to be disclosed without their consent.

Raising a grievance

A grievance is a concern an employee has about their terms and conditions of employment, working procedures or working conditions.

For example, if you have a complaint around selection criteria for a promotional position or if you have a complaint around the allocation of overtime.

Generally, a grievance is dealt with through an internal grievance procedure. While some grievances may also be protected disclosures, an issue that solely relates to a personal employment grievance and only affects you is not considered a protected disclosure.

You can report a concern in different ways– to your employer, to a prescribed person, to an external person or to the Office of the Protected Disclosures Commissioner.

Disclosure to your employer

The simplest form of disclosure is to your employer. In this case all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.

You can make a disclosure in writing, orally, or both. You can request a meeting to make an oral disclosure.

See ‘How your report will be dealt with’ below.

Disclosure to a prescribed person

You may choose to report to one of the prescribed persons listed in Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020.

In general, prescribed persons have regulatory functions in the area which are the subject of the allegations. Examples are the Central Bank, The Health and Safety Authority and the Data Protection Commission. You can get a full list of prescribed persons by sector on gov.ie. This list will help you find the right person or body to report to.

A disclosure you make to a prescribed person is a protected disclosure if both these conditions are met:

• You reasonably believe that the relevant wrongdoing is within the remit of the prescribed person
• The information you disclose and any allegation in it are substantially true (this is a higher standard than is required for disclosure to your employer)

See ‘How your report will be dealt with’ below.

Disclosure to an external person

If you are or were employed in a public body, you may report to the relevant Minister in certain circumstances. The Minister must, without having considered the report, send it to the Protected Disclosures Commissioner who will identify the appropriate prescribed person or other suitable person.

You must reasonably believe the information disclosed and any allegations are true and at least one of these conditions are met:

• You previously made a report but no feedback was provided or no feedback was provided within a set timeframe (typically 3 months)
• You believe that there has been no or inadequate follow-up where feedback has been provided.
• You believe the head of the public body is complicit in the wrongdoing
• You believe the wrongdoing may be an imminent or manifest danger to the public interest including an emergency situation or where there is a risk of irreversible damage

A disclosure made to a solicitor, barrister or trade union official in the course of getting legal advice is also a protected disclosure.

A disclosure made to another external person, for example, a journalist, may be a protected disclosure if it meets these conditions:

• You must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true

And one of the below applies:

• You previously made a report to another person specified above but no appropriate action was taken in response to it
• You reasonably believe that there is an imminent or manifest danger to the public interest
• There is a risk of penalisation if the report was made through other channels
• There is a risk of the report being effectively addressed if the report was made through other channels such as where you reasonably believe that key evidence will be concealed or destroyed.

See ‘How your report will be dealt with’ below.

Disclosure to the Office of the Protected Disclosures Commissioner

You can make a protected disclosure to the new Office of the Protected Disclosures Commissioner. This office was set up under the 2022 Act and will be part of the Office of the Ombudsman.

The Office of the Protected Disclosures Commissioner will identify a prescribed person or another suitable person competent to take appropriate action to follow up on your disclosure.

Where no other suitable person with the required competence can be identified by the Office of the Protected Disclosures Commissioner, the Commissioner will follow up directly on the report.

See ‘How your report will be dealt with’ below.

The Protected Disclosures (Amendment) Act 2022 introduces new procedures for how your report must be handled. The Act commenced on 1 January 2023.

Reports to your employer

For some sectors, there is a lead in period before the new rules on reporting channels and procedures must be in place. Many private sector and charity employers with between 50 and 249 employees have until 17 December 2023 to comply with the new rules.

Private sector and charity employers with 250 or more employees must comply with the new procedures from 1 January 2023.

Employers in the areas of financial services, products and markets and prevention of money laundering and terrorist financing, transport safety, and protection of the environment must also comply from 1 January 2023.

All public bodies will need to overhaul their protected disclosures procedures to comply with new rules by 1 January 2023.

Reporting channels and procedures can be undertaken by either:

• An internal person or department designated by your employer
• An external third party authorised by your employer

Designated person

Employers must establish and operate internal reporting channels that makes sure your identity stays confidential.

There must be a designated person in your organisation for dealing with employee disclosures. The designated person must be impartial and competent to follow up on reports.

The designated person will communicate with you, provide feedback to you on the investigation and request more information, if needed.

Employers must establish and operate internal reporting channels that makes sure your identity stays confidential.

Procedures for dealing with employee disclosures

Your employer must follow a strict timeline for acknowledging, providing feedback and dealing with your report. They must:

• Acknowledge your report within 7 days
• Diligently follow up on your report
• Give you feedback, within 3 months, on actions taken or planned

Clear and easily accessible information on the procedures applicable to the making of reports must be provided by employers.

Reports to a prescribed person

The prescribed person or external person who receives your protected disclosure must:

• Generally acknowledge your report within 7 days
• Diligently follow up on your report (including if you made the report anonymously)
• Give you feedback, within 3 months, on actions taken or planned (can be extended to 6 months in certain justified cases)
• Give you information on the final outcome of any investigations

Clear and easily accessible information on the procedures applicable to the making of reports must be provided by prescribed persons on their websites.

Reports to the Office of the Protected Disclosures Commissioner

You can download, complete, and submit a report to the Office of the Protected Disclosures Commissioner. The Office of the Protected Disclosures Commissioner will generally acknowledge your report within 7 days. It will then identify a prescribed person or another suitable person to follow up on your disclosure. It will do this within 14 days of receiving your report.

The other prescribed person or suitable person will then:

• Diligently follow up on your report (including if you made the report anonymously)
• Give you feedback, within 3 months, on actions taken or planned (can be extended to 6 months in certain justified cases)
• Give you information on the final outcome of any investigations

If the Office of the Protected Disclosures Commissioner cannot identify a prescribed or suitable person, it will investigate the disclosure itself.

Again, clear and easily accessible information on the procedures applicable to the making of reports must be provided by the Commissioner on a website.

If you want to submit a report to the Office of the Protected Disclosures Commissioner, you must download the application form (pdf) and submit the report. For more information on where to submit this report see 'More Information' below.

You are protected against being penalised (or punished) either directly or indirectly for making a protected disclosure.

You are penalised if there is any act or omission that is detrimental to you, for example, dismissal, unfair treatment or threats of reprisal. Additional types of penalisation from 1 January 2023 include a loss of promotion opportunity, a negative performance review or employment reference or the withholding of training.

A disclosure is assumed to be protected until it is proved that it is not protected. Under the Protected Disclosures Act, the employer has to prove that the disclosure is not protected within the meaning of the Acts.

Dismissal after making a protected disclosure

If you are dismissed from your employment because you made a protected disclosure, that dismissal is regarded as unfair. You may make a claim for unfair dismissal and if your claim succeeds, you may be awarded compensation of up to 5 years’ pay. (Generally, the maximum compensation in unfair dismissal cases is 2 years’ pay).

Unfair dismissal protection does not generally apply to employees with less than 1 year service, trainees or Gardaí. These restrictions do not apply where the dismissal is because of making a protected disclosure. (The restriction on members of the Defence Forces continues to apply).

Your motivation for making a protected disclosure may affect the level of compensation you are awarded. If the investigation of the wrongdoing was not your only or main motivation for making the disclosure, then the compensation awarded to you may be up to 25% less than it would otherwise be.

Penalties other than dismissal

If you make a protected disclosure, your employer is banned from penalising or threatening to penalise you or causing or allowing anyone else to do so. If you are penalised or threatened, you can make a complaint to the Workplace Relations Commission using the online complaint form available on workplacerelations.ie. You should make a complaint within 6 months (although this time can be extended to 12 months if there is a valid reason for the delay).

It is up to your employer to prove that they did not penalise you for making a protected disclosure. The adjudicator's decision on your complaint may require your employer to take a specific course of action and may award you compensation.

Appeals

You or your employer may appeal the adjudicator's decision to the Labour Court. The Labour Court may refer a question of law arising in the case to the High Court. The High Court’s decision on the matter is final. You or your employer can appeal the Labour Court’s decision on a point of law to the High Court. Again, the decision of the High Court is final.

Civil actions

The 2014 Act provides for immunity from most civil actions for damages – in effect, you cannot be successfully sued for making a protected disclosure.

You can sue a person who causes detriment to you because you made a protected disclosure. However, you cannot do this and also look for redress under the unfair dismissals legislation or make a complaint to the Workplace Relations Commission.

Your motivation for making a protected disclosure may affect the level of compensation you are awarded in civil proceedings. If the investigation of the wrongdoing was not your only or main motivation for making the disclosure, then the compensation awarded to you may be up to 25% less than it would otherwise be.

Since 1 January 2023, you can also apply to the Circuit Court for temporary relief from penalisation. Prior to this date, an application for temporary relief could only be made to the Circuit Court to prevent a dismissal.

If you knowingly make a false disclosure, you can be sued for damages by any person negatively affected.

Criminal proceedings against you

Making a disclosure containing any information which you know to be false is a criminal offence. If found guilty in the District Court, you can be fined up to €5,000, imprisoned for up to 6 months or both. More significant penalties apply if you are convicted in a higher court.

If you are charged with unlawfully disclosing information, it is a defence that you were making what you reasonably thought to be a protected disclosure.

You can get information on your rights and entitlements under employment legislation from the Workplace Relations Commission.

You can get independent and confidential advice if you are considering reporting a concern or making a protected disclosure is available through the 'Speak Up' helpline at 1800 844 866, Monday to Friday, 10am to 6pm. You can email helpline@transparency.ie or visit speakup.ie.

The Transparency Legal Advice Centre (TLAC) provides free legal advice to anyone who wants to disclose wrongdoing under the Protected Disclosures Act (as amended). You can access this through the Speak Up helpline (see above).

You can submit a report to the Office of the Protected Disclosures Commissioner by:

• Email to info@opdc.ie
• Post to Office of the Protected Disclosures Commissioner 6 Earlsfort Terrace, Dublin 2, D02W773
• Phone at 01 639 5650

You can read the Protected Disclosures Commissioners FAQs for more information.