Protected Disclosures (Amendment) Act 2022

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Protected Disclosures (Amendment) Act 2022.

(2) This Act shall come into operation on such day or days as the Minister for Public Expenditure and Reform may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definition

2. In this Act, “Principal Act” means the Protected Disclosures Act 2014.

3. Repeals

3. The following provisions of the Principal Act are repealed:

(a) section 5(7A);

(b) section 7(3);

(c) section 12(9) and (10);

(d) paragraph 4 of Schedule 3.

PART 2 Amendments to Principal Act

Chapter 1 Application of Principal Act

4. Amendment of section 3 of Principal Act

4. Section 3 of the Principal Act is amended—

(a) in subsection (1)—

(i) in the definition of “employer”—

(I) by the deletion of “or” before paragraph (d),

(II) in paragraph (d), by the substitution of “training,” for “training;”, and

(III) by the insertion of the following paragraphs after paragraph (d):

“(e) in the case of an individual who is a worker by virtue of paragraph (e) of the definition of that term, the undertaking of which the worker is or was a shareholder,

(f) in the case of an individual who is a worker by virtue of paragraph (f) of the definition of that term, the undertaking, the administrative, management or supervisory body of which the worker is or was a member,

(g) in the case of an individual who is a worker by virtue of paragraph (g) of the definition of that term and who is a volunteer, the person for whom the individual is or was a volunteer,

(h) in the case of an individual who is a worker by virtue of paragraph (h) of the definition of that term, the person by whom or on whose behalf the recruitment process concerned is or was carried out, or

(i) in the case of an individual who is a worker by virtue of paragraph (i) of the definition of that term, the person by whom or on whose behalf the pre-contractual negotiations are or were carried out;”,

(ii) by the substitution of the following definition for the definition of “penalisation”:

“‘penalisation’ means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”,

(iii) by the substitution of the following definition for the definition of “worker”:

“‘worker’ means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes—

(a) an individual who is or was an employee,

(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) an individual who works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,

(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to in paragraph (h)), and

(j) an individual who is deemed to be a worker by virtue of subsection (2)(b),

and any reference to a worker being employed or to employment shall be construed accordingly.”,

and

(iv) by the insertion of the following definitions:

“‘Annex’ means the Annex to the Directive, the text of which for ease of reference is set out in Schedule 6;

‘breach’ means an act or omission—

(a) that is unlawful and to which one or more of the following subparagraphs applies:

(i) the act or omission falls within the scope of the Union acts set out in the Annex that concern the following areas:

(I) public procurement;

(II) financial services, products and markets, and prevention of money laundering and terrorist financing;

(III) product safety and compliance;

(IV) transport safety;

(V) protection of the environment;

(VI) radiation protection and nuclear safety;

(VII) food and feed safety and animal health and welfare;

(VIII) public health;

(IX) consumer protection;

(X) protection of privacy and personal data, and security of network and information systems;

(ii) the act or omission affects the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union and as further specified in relevant Union measures; or

(iii) the act or omission relates to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law;

or

(b) that defeats the object or purpose of the rules in the Union acts and areas referred to in paragraph (a);

‘Commissioner’ means the person who, for the time being, holds the office of Protected Disclosures Commissioner established by section 10A;

‘data protection law’ means—

(a) the Data Protection Acts 1988 to 2018,

(b) the General Data Protection Regulation,

(c) all law of the State giving further effect to the General Data Protection Regulation,

(d) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016[^2] on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, and

(e) all law of the State giving effect or further effect to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 referred to in paragraph (d);

‘Directive’ means Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019[^3] on the protection of persons who report breaches of Union law, as amended by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020[^4];

‘enactment’ means—

(a) an Act of the Oireachtas,

(b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continued in force by virtue of Article 50 of the Constitution, or

(c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b);

‘European Union’ has the same meaning as it has in the European Communities Act 1972;

‘facilitator’ means an individual who assists, in a confidential manner, a reporting person in the reporting process in a work-related context;

‘feedback’ means the provision to a reporting person of information on the action envisaged or taken as follow-up and on the reasons for such follow-up;

‘follow-up’ means any action taken by—

(a) the recipient of a report made in the manner specified in section 6 or 7, or

(b) a person to whom a report is transmitted under section 7A, 8, 10C or 10D,

to assess the accuracy of the information contained in the report and, where relevant, to address the relevant wrongdoing reported, including, but not limited to, actions such as an internal inquiry, an investigation, prosecution, an action for recovery of funds or the closure of the procedure;

‘General Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016[^5] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;

‘Ombudsman’ means the person who holds the office of Ombudsman in accordance with the Ombudsman Act 1980;

‘person concerned’ means a natural or legal person who is referred to in a report as a person to whom the relevant wrongdoing is attributed or with whom that person is associated;

‘prescribed’ means prescribed by order or regulations made by the Minister under this Act;

‘prescribed person’ means a person prescribed by order under section 7;

‘report’ or ‘to report’ means the oral or written communication of information on relevant wrongdoings;

‘reporting person’ means a worker who makes a report in accordance with this Act;

‘work-related context’ means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information;”,

and

(b) by the insertion of the following subsection after subsection (2):

“(3) A word or expression that is used in this Act and which is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.”.

5. Orders and regulations

5. The following section is inserted after section 4 but in Part 1 of the Principal Act:

“4A. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every order made under section 6(6) or 7(2) and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.

6. Amendment of section 5 of Principal Act

6. Section 5 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “subsection (6) ” for “subsections (6) and (7A)”,

(b) in subsection (2)(b), by the substitution of “in a work-related context” for “in connection with the worker’s employment”,

(c) in subsection (3)—

(i) in paragraph (g), by the substitution of “mismanagement,” for “mismanagement, or”,

(ii) by the substitution of the following paragraph for paragraph (h):

“(h) that a breach has occurred, is occurring or is likely to occur, or”,

and

(iii) by the insertion of the following paragraph after paragraph (h):

“(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.”,

(d) by the insertion of the following subsection after subsection (5):

“(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”,

and

(e) in subsection (7), by the substitution of “The motivation” for “Subject to subsection (7A), the motivation”.

7. Anonymous reports

7. The following section is inserted after section 5 of the Principal Act:

“5A. (1) Without prejudice to the provisions of any other enactment relating to anonymous reporting of wrongdoing, nothing in this Act shall oblige any person to accept and follow-up on anonymous reports made in the manner specified in section 6 but a person may, if he or she considers it appropriate to do so, follow-up on a matter the subject of an anonymous report.

(2) A worker who makes a disclosure in the manner specified under section 6, 7, 8, 9 or 10 by way of an anonymous report and who is subsequently identified and penalised for having made the disclosure shall be treated for the purposes of this Act as having made a protected disclosure and shall be entitled to the same protections under Part 3 as a worker who has been penalised for having made a protected disclosure.”.

Chapter 2 Internal and external reporting channels and follow-up

8. Amendment of section 6 of Principal Act

8. Section 6 of the Principal Act is amended by the insertion of the following subsections after subsection (2):

“(3) Subject to subsections (5) to (8), for the purposes of enabling the making of reports, an employer with 50 or more employees shall, in accordance with this section and section 6A, establish, maintain and operate internal reporting channels and procedures for the making of such reports and for follow-up (in this Act referred to as ‘internal reporting channels and procedures’).

(4) The threshold of 50 employees provided for by subsection (3) shall not apply where the employer—

(a) is a public body, or

(b) falls within the scope of the Union acts referred to in Parts I.B and II of the Annex.

(5) Subsection (3) shall not come into effect for employers, other than public bodies and entities who fall within the scope of the Union acts referred to in Parts I.B and II of the Annex, with not less than 50 but not more than 249 employees until 17 December 2023.

(6) (a) Following the carrying out, by or on behalf of the Minister, of an appropriate risk assessment taking into account the activities of the class or classes of employers concerned and the ensuing level of risk for, in particular, the environment and public health, the Minister may, by order, provide that subsection (3) shall apply to such class or classes of employers with less than 50 employees as the Minister may specify in such order.

(b) Before making an order under this subsection, the Minister shall publish or cause to be published on a website maintained by or on behalf of the Minister and which is accessible to the public—

(i) a copy of the proposed order,

(ii) a copy of the risk assessment referred to in paragraph (a), and

(iii) a notice—

(I) stating that the Minister intends to make the proposed order,

(II) stating where, on the website concerned, the documents referred to in subparagraphs (i) and (ii) can be accessed,

(III) inviting the making, during the period specified by the Minister for this purpose, of submissions to the Minister in relation to the proposed order, and

(IV) stating the date of publication of the notice,

and having considered any submissions made in response to the invitation referred to in clause (III) may make the order, with or without amendment.

(c) Submissions made under paragraph (b)(iii)(III) shall be published or caused to be published by the Minister on a website maintained by or on behalf of the Minister and which is accessible to the public.

(d) The Minister shall notify the Commission of the European Union of the making, amendment or revocation of an order under this subsection, and the notification shall include the reasons for making, amending or revoking the order and the criteria used in carrying out the risk assessment referred to in paragraph (a).

(7) (a) The Minister may by regulations provide that the internal reporting channels and procedures required to be established, maintained and operated by employers to whom subsection (3) applies shall also enable the making of reports by other persons or such class or classes of other persons, as the Minister may prescribe, referred to in points (b), (c) and (d) of Article 4.1 and Article 4.2 of the Directive, who are in contact with the entity concerned in the context of their work-related activities.