Protected Disclosures - reporting

Readers are referred to the provisions in the Protected Disclosures Act 2014 (as amended) for full information in relation to legal obligations and  requirements in respect of  internal and external reporting channels . The  Statutory guidance also has tables, diagrams and infographs where readers will find further useful information in this area.

The various ways to report

The 2014 Act as amended provides for a number of different reporting routes. The legislation  is intended to encourage workers to report disclosures internally initially, in that the worker is only required to have a “reasonable belief” that they are disclosing a relevant wrongdoing which came to the worker's attention in a work related context. External reporting channels can be used either after reporting through an internal channel or without reporting through an internal reporting channel. Should the worker decide to report the wrongdoing externally, for example to a prescribed person the burden of proof is higher, and the worker must ,as well as showing that it came to their attention in a work-related context, be able to show  that they believe the disclosure to be “substantially true”.

Employer

Reporting to an 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.

Prescribed Persons

Reporting to a prescribed person; The disclosure is protected if it is made with the reasonable belief that it falls within the description of matters for which the person is prescribed and that the information disclosed and any allegation contained in it are  substantially true.

Prescribed persons are generally the heads of public bodies or organisations with regulatory powers within their sector and so can receive and take action on disclosures from workers who do not wish to report suspected wrongdoing internally to their employer or who have already reported to their employer but no action or insufficient action was taken. The Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 (S.I. No. 367 of 2020) sets out the listing of prescribed persons. They are people who have regulatory functions in the area, which is the subject of the disclosure for example a member of  the Competition and Consumer Protection Commission, the Pensions Regulator and the CEO of IAASA.

Protected Disclosures Commissioner

Reports can be made to the Commissioner. To make a protected disclosure to the Commissioner the person must reasonably believe that the information they disclose and any allegation they make is substantially true. The Commissioner will check if there is an appropriate prescribed person to deal with the report and, where there is, they will send the report to them. The Commissioner will not investigate what the person says in their report or check whether or not it qualifies for protection before they send it to another person. The Commissioner's  primary role is to ensure a report gets safely to the right ‘prescribed person’. If this is unclear, they will decide who is the most appropriate prescribed organisation or other suitable person.  If the Protected Disclosures Commissioner decides there is no appropriate prescribed person to send it to, they may deal with the report as the prescribed person of last resort. See here the Protected Disclosures Commissioner-Summary Procedures and you can read more on the Office of Protected Disclosures Commissioner on their website.

Reporting to a minister

Section 8 deals with disclosure to a minister of the Irish government and sets out the circumstances where a report can be made to a minister. In brief the worker must be employed by a public body and where previous reports have been made but not acted on. Each minister must make available  clear and accessible information on how to make a report.

The disclosure is protected if the worker is or was employed in a public body and meets one (or more) of the following conditions:

• a report was previously made but no feedback was provided or where feedback has been provided the worker reasonably believes there has been no or inadequate follow-up;
• the worker reasonably believes the  head of public body is complicit in the wrongdoing; and
• the worker reasonably believes that the relevant wrongdoing may constitute an imminent/manifest danger to the public interest.

Other instances where a protected disclosure can be made

Section 10 sets out where a whistle-blower can make a report and is protected. For example in the case of a public disclosure. Care must be taken in all cases to ensure the disclosure is in fact protected, It is  strongly recommended  that advice is sought before making this type of report to assess whether the conditions for protection exist. The criteria here is as follows

The worker reasonably believes that the information disclosed in the report and any allegation contained in it are substantially true and the worker has previously made a disclosure of substantially the same information to the employer, a prescribed person, the Commissioner or a minister but no appropriate action was taken .Or where the whistleblower has reasonable grounds to believe that the relevant wrongdoing may constitute an imminent or manifest danger to the public interest or where there is a risk of penalisation or the wrongdoing  will not be dealt with effectively.

Anonymous reports

An anonymous disclosure is where their identity is withheld by the reporting person.  The 2022 Act makes specific provision that there is no obligation to accept or follow up on anonymous reports, but a person can do so if they consider it appropriate. Section 8.4 of the Statutory guidance references an obligation on prescribed persons and the Commissioner  to accept and follow up on anonymous disclosures unless there is a specific prohibition on doing so in the prescribed person's sectoral legislation .

Confidentiality obligations and data protection

The 2014 Act (as amended) provides for the protection of the identity of the maker of a protected disclosure. The recipient may not disclose the identity of the reporting person without their explicit consent. There are some exceptions to this in the 2014 Act (as amended). The Act also protects the identity of persons concerned and contains provisions in relation to data protection in the context of protected disclosures.

Offences and penalties

The 2014 Act (as amended) provides for offences and penalties .For example hindering a worker in making a report or failure to establish maintain and operate internal reporting channels and procedures is an offence  .The penalty on summary conviction is a fine or imprisonment for a term not exceeding 12 months, or both .On conviction on indictment the fine is not exceeding €250,000 or imprisonment for a term not exceeding 2 years, or both.

These pages are provided as resources and information only and nothing in these pages purports to provide professional or legal advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.