Art. 2 (2) - Extension of material scope beyond EU law
The material scope has not been extended.
Art. 4 (1) - Extension of personal scope (protected person)
Yes. The following persons are also covered:
– an individual who acquires information on a relevant wrongdoing during a recruitment process,
– an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations
– in the context of local government, it is considered that members of a local authority (i.e. county/city councillors) are included
Art. 6 (2) - Acceptance of anonymous reports
(a) private sector regarding internal reporting: Yes, to accept and evaluate.
(b) public sector regarding internal reporting: Yes, to accept and evaluate.
(c) competent authorities regarding external reporting: Yes, to accept and evaluate, unless there is a specific prohibition on doing so in the competent authority’s sectoral legislation.
Art. 7 (2) - Encouraging internal reporting
The threshold for qualification for protection is lower when internal reporting channels are used. For internal reporting, reporting persons are only required to have a “reasonable belief” that the information disclosed “tends to show” “relevant wrongdoing”. The threshold for external reporting is higher. For example, when reporting to a prescribed person (competent authority), the reporting person must reasonably believe that the information disclosed is “substantially true”. When reporting in ‘other cases’ not specified in the Act (such as the press), the reporting person will not qualify for protection unless they reasonably believe that the information disclosed is “substantially true” and they have already disclosed substantially the same information through one of the channels set out in the Act, but no appropriate action has been taken in response to the report within the specified period, or that they reasonably believe that that the disclosure contains information about a relevant wrongdoing that may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage, or if the reporting person were to make a report to a competent authority of a Government Minister there is a risk of penalisation, or
there is a low prospect of the relevant wrongdoing being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where the competent authority may be in collusion with the perpetrator of the wrongdoing or involved in the wrongdoing.
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
Art. 8 (9) second subparagraph - Exemption for municipalities with fewer than 10.000 inhabitants / fewer than 50 workers / other entities with fewer than 50 workers
This is not relevant in Ireland. All ‘public bodies’ irrespective of size are within the scope of the Protected Disclosures Act 2022 (as amended).
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
The Protected Disclosures (Amendment) Act 2022 has created the Office of the Protected Disclosures Commissioner. The Commissioner can accept disclosures from workers in private or public sector bodies. The Commissioner has certain powers and responsibilities under the Act. The Commissioner’s primary duty is to refer any reports received under the Act to the most appropriate prescribed person (competent authority) or to other suitable persons if a prescribed person cannot be identified.
Art. 11 (1) - Authorities competent to receive external reports
Competent Authorities are referred to a ‘Prescribed Persons’ in the Protected Disclosures Act 2014 (as amended). The list of Prescribed Persons is updated from time to time by statute. The current list can be found at https://www.gov.ie/prescribed-persons. The Protected Disclosures (Amendment) Act 2022 also created the Office of the Protected Disclosures Commissioner (see previous narrative). Where a reporting person makes a disclosure to a prescribed person or the Commissioner, this is referred to as “external reporting”. Prescribed persons and the Commissioner are required to establish formal “external reporting channels” and put in place procedures for reporting persons to make disclosures and for follow up. These are currently being put in place.
Prescribed persons and the Commissioner are required to ensure that information on how to access and use their external reporting channels is easily available to the public, by publishing this information on their website. again, these are currently being put in place. Prescribed persons are required to actively promote the existence of the external reporting channel among workers in the sectors they regulate or supervise.
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
Art. 20 (2) - Financial assistance and support measures for reporting persons
No financial assistance. Various provisions are included for the provision of information to reporting persons.
Art. 21 (1) first sentence - Protection measures against retaliation
– Protection from dismissal
– Protection from penalisation
– Ability to initiate a tort action for suffering detriment
– Immunity from civil liability
– Immunity from criminal action for breaching laws prohibiting or restricting the disclosure of information where they apply and
– Protection of identity.
Art. 23 (1) - Penalties
In all such cases, on conviction, fines up to €250,000 or imprisonment for up to 2 years, or both, may be imposed.
Similar penalties apply where a person fails to comply with the requirement to establish, maintain and operate internal reporting channels and procedures.
If an offence is committed by a public body, and is committed with the consent of, or is attributable to the neglect on the part of a director, manager or other officer of the public body, that person will also be liable for prosecution.
Art. 23 (2) first sentence - Penalties for false reporting
On conviction, fines up to €250,000 or imprisonment for up to 2 years, or both, may be imposed.
Art. 25 (1) - Further national rights of reporting persons
Existing rights and protections in the Protected Disclosure Act 2014 have been materially retained.
Additional rights have been introduced whereby:
– reports must be acknowledged in writing in 7 days
– reporting persons can make disclosures to the Protected Disclosures Commissioner.
Ireland has had protected disclosures legislation in place since 2014. Many of the provisions in the Directive already existed in the Protected Disclosures Act 2014. The Protected Disclosures (Amendment) Act 2022 updates the 2014 Act to bring it into line with the Directive. The additional provisions come into operation for public bodies and private bodies with more that 250 employees on 1 January 2023. For private bodies with between 50 and 249 employees, they come into operation on 17 December 2023.