Protected disclosures in Ireland – new statutory Guidance published and more employers now required to comply

So, what’s new?

It has been a requirement since January 2023 for private sector employers in Ireland with over 250 employees to have whistleblowing procedures in place and to provide internal channels for their workers to report wrongdoing. These channels must also provide for acknowledgement, follow-up and feedback on such complaints. These can be operated internally by a designated person or department or can be provided externally by a third party on behalf of the employer. Failure to establish appropriate reporting channels is a criminal offence.

This was part of wide-ranging changes to Irish whistleblowing legislation that came into effect on 1 January 2023 in order to fully implement the EU Whistleblowing Directive. We wrote in detail about these changes before they were introduced in a previous article here.

What’s new is that, while previously this applied only to employers with 250 or more employees, since 17 December 2023 the requirement to put these measures in place now applies to employers with only 50 or more employees. This means that lots more employers, if they haven’t already done so, need to they update their policies and procedures in line with the legislation to effectively deal with whistleblowing claims and ensure their managers and other relevant staff are trained on what is required under the legislation when dealing with whistleblowing claims from their employees.

What else is new?

New statutory Guidance on protected disclosures for public bodies and prescribed persons, together with a template internal reporting policy for use by public bodies, was also published on 20 November 2023. A copy of the Guidance can be found here. This supersedes the previous interim Guidance which was published in 2022 following the implementation of the changes to our protected disclosures legislation referred to above.

While the Guidance does not set out anything new insofar as employers’ obligations under the protected disclosures legislation is concerned, what it does do is provide helpful explanations and interpretations of the legislation so that employers can better understand how best to deal with workers’ complaints. The template internal reporting policy contained in Appendix B to the Guidance, which is designed to be adapted and used by public sector employers in developing their internal reporting procedures, is also a very useful tool as most of its suggested structure and wording will be relevant to all employers generally.

Is the new Guidance relevant to the private sector?

While clearly targeted at the public sector, much of the content is also relevant to, and can therefore be used as a useful reference point for best practice by, private sector employers who come within the remit of the legislation. Indeed, this was expressly mentioned by the Minister when introducing the Guidance where he confirmed his hope that private sector organisations will also find it useful in respect of those provisions of the legislation that apply to them.

The protected disclosures legislation requires that relevant employers must have internal channels for their workers to report wrongdoing. These internal reporting channels should enable reports to be made both in writing or orally (or both), must provide for acknowledgement of all reports within seven days, diligent follow-up on the report by the recipient, and the provision of feedback to the reporting person on actions taken or expected to be taken within three months.

The new statutory Guidance explains these requirements in detail and sets out what internal reporting channels should actually look like and what employers should consider on a practical level when establishing and operating them. The Guidance outlines the information that should be included, the different factors to be considered depending on nature and type of workforce, how confidentiality is maintained, how employers can safeguard their reporting channels, what should be included by an employer in a disclosure report. It also addresses how to deal with protected disclosures that are made informally and how employers should assess if a complaint might in fact be an interpersonal grievance.

These are all matters which employers in the private sector, particularly those who are now required to have whistleblowing procedures in place (because they now come within the 50 employees or more threshold), should familiarise themselves with to ensure they meet all their obligations under the legislation and to ensure they adhere to best practice.

Our team of specialist employment lawyers are here to support you any queries you might have above your obligations under the Irish protected disclosures legislation and to understand the recommendations outlined in the new Guidance insofar as they are relevant to your organisation.