Whistleblowing rule changes come into force on 1 January 2023

Gemma O'Connor - Services and Operations Manager

November 23 2022

First published: 23rd November 2022
Last updated: 23rd November 2022

The Minister for Public Expenditure and Reform, Michael McGrath, recently confirmed that the Protected Disclosures (Amendment) Act 2022 will come into force on 1 January 2023.

Here we take a look at some of the most significant changes to the existing whistleblowing legislation that employers will need to consider.  

Private sector businesses to establish formal reporting channels

The new legislation will oblige private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. This is currently only the case in the public sector.

From 1 January 2023, employers with 250 or more employees will need to put a reporting channel in place for receiving disclosures and establish a procedure for processing disclosures.

Employers with between 50 and 249 employees are not required to establish these reporting channels until 17 December 2023.

Wider range of positions receive protection under new Act

The Protected Disclosures (Amendment) Act 2022 widens the definition of "worker" to include:

  • board members (including non-executive members);
  • shareholders
  • trainees
  • job applicants

The existing legislation limited whistleblowing protection to workers who came across information in connection with their employment.

Wider definition of ‘relevant wrongdoing’

The definition of 'relevant wrongdoing' has also been widened under the 2022 Act. The types of wrongdoing that will be protected from January next year now include breaches of a range of EU laws that are prescribed in the EU Whistleblowing Directive.

Wider definition of ‘penalisation’

The 2022 Act also widens the definition of penalisation. If an employee or other protected person makes a disclosure, employers must be aware of the wider definition of penalisation which now includes the following (non-exhaustive list):

  • suspension, lay-off or dismissal;
  • demotion or loss of opportunity for promotion;
  • transfer of duties, change of location, change in working hours or rates of pay
  • disciplinary action including financial penalties
  • unfair treatment
  • a negative performance assessment or employment references
  • medical or psychiatric referrals; and
  • blacklisting within an industry.

Burden of proof reversed and shifts to employer

The new whistleblowing legislation reverses the burden of proof in protected disclosure claims. This will render whistleblowing cases similar to equality claims where it is the employer who must establish that any alleged penalisation of employees was based on objectively justified grounds.

Criminal offences and sanctions

The amended legislation also creates a range of criminal offences and sanctions. Employers who hinder a relevant person from making of a protected disclosure or penalise a worker for making a protected disclosure could face criminal liability.

Depending on the nature of the offence, employers may be liable to punitive fines starting at €75,000 and rising to €100,000 or in some cases €250,000. Certain officers of a business may also be liable to serve up to 12 months in prison on summary conviction or up to 2 years on indictment. Employees will also be subject to criminal liability should they make a protected disclosure based on information that they know to be false.

What should employers do to prepare?

If your business employs fifty or more staff, you should update your whistleblowing policies and ensure that you have created the formal internal reporting channel and procedures as required under the updated protected disclosure legislation.

Organisations with more than 250 staff need to ensure their compliance with the new legislation from 1 January 2023.

Businesses with between 50 and 249 employees have until 17 December 2023 to comply.

Need help updating your protected disclosure policy?

Protected disclosures can be a difficult area of employment law for business owners to navigate.

To ensure your business is ready for these new legal obligations, call your Peninsula expert today on 1800 719 216.

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