Ireland - Whistleblowing Laws in Europe: An international guide

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1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

The Protected Disclosures Act 2014 (2014 Act) is the principal legislation relating to whistleblowing and provides protection to workers who make a protected disclosure.

The Central Bank (Supervision and Enforcement) Act 2013 (2013 Act) concerns disclosures made in relation to financial services offences.

The Criminal Justice Act 2011 (2011 Act) requires individuals to provide information about a relevant offence to the Garda Síochána (the Irish police force) if they believe it might be of material assistance to the police.

The European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (2011 Regulations) require UCITS management companies, corporate UCITS funds and depositaries to “have in place appropriate procedures for their employees to report infringements internally through a specific, independent and autonomous channel.”

The EU (Money Laundering and Terrorist Financing) Regulations 2019 (2019 Regulations) contain an internal reporting regime obligation on all designated persons including fund management companies, corporate funds, fund administrators and depositaries.

The General Scheme of Protected Disclosures (Amendment) Bill was published on 12 May 2021 to provide for the transposition of the EU Directive 2019/1937 into Irish law. While Ireland already has comprehensive legal protections for whistleblowers in the form of the Protected Disclosures Act, the proposed changes will further enhance and strengthen the existing protections. The scheme is a broad outline of the proposed legislation, and detailed legislation will be proposed at a later stage. It is intended that the bill will be proposed and enacted by the end of 2021.

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

The following matters are considered wrongdoings under the 2014 Act:

  • Any offence under Irish law which has been, is being or is likely to be committed.
  • Failure to comply with any legal obligation has, is or is likely to take place, other than one arising under a contract of employment or other contract, whereby the worker has undertaken to do or perform any work or services.
  • A miscarriage of justice has occurred, is occurring or is likely to occur.
  • That the health or safety of any individual has been, is being or is likely to be endangered.
  • That the environment has been, is being or is likely to be damaged.
  • That an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur.
  • That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement.
  • 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.

b) Personal scope

  1. Does the Local Law apply to reporting persons working in both the private and public sectors?

  2. The 2014 Act applies to workers, defined as an individual who:

    • Is an employee.
    • 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.
    • Works or worked for a person in circumstances in which: the individual is introduced or supplied to do the work by a third person; and 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.
    • Is or was provided with work experience pursuant to a training course or program or with training for employment (or with both) otherwise than under a contract of employment, or by an educational establishment on a course provided by the establishment.

    The definition includes civil servants and members of the Irish police force.

    The definition of worker therefore covers both the public and private sector and adopts a broad interpretation of employee. It does not, however, include shareholders as workers.

  3. Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

  4. Yes, the 2014 Act applies only to relevant information that has come to the reporting person’s attention in connection with the worker’s employment.

  5. Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

  6. Local law does not specifically protect any parties other than the whistleblower.

c) Does the Local Law require specific conditions to protect reporting persons?

For a disclosure to qualify, the whistleblower must have a reasonable belief that the information being disclosed tends to show one or more relevant wrongdoings.

The EU Trade Secrets Directive 2016943, as implemented in Ireland, requires the whistleblower who uses or reveals a trade secret as part of the protected disclosure to prove their motivation for doing so was in the public interest.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

Local law allows for anonymous disclosures made by workers to be protected disclosures.

b) Is there a duty of confidentiality and any derogation from this duty?

Local law requires the recipient of the disclosure to protect the whistleblower’s identity in so far as possible, but there are certain exceptions to this obligation. For example, if identifying the whistleblower is essential to effective investigation or required in order to prevent crime or risks to State security, public health or the environment.

c) Public disclosures: does the Local Law provide for this possibility?

A protected disclosure may also be made to the media or into the public domain but the standard required of the whistleblower is higher.

The whistleblower must reasonably believe: that the information disclosed is true; that they would be penalised if they disclosed to their employer; and that the evidence will be destroyed. The whistleblower must not make the disclosure for personal gain. The making of the disclosure must be reasonable, the wrongdoing is of an exceptional nature, and the worker must have previously made a similar disclosure but nothing was done about it.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

Under the 2014 Act, disclosures are protected when they are made to a prescribed person, i.e. to their employer or where the whistleblower reasonably believes the conduct in question relates to another person, to that person. There are no legislative requirements for private companies in how they establish reporting channels.

Every public body shall establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures. Public bodies should refer to government guidance under section 21(1) of the Protected Disclosures Act 2014 for the purpose of assisting public bodies in the performance of their functions under the Act.

b) Do internal reporting channels need to allow reporting in writing, orally or both?

Government guidance for public bodies recommends allowing for disclosure verbally, electronically or in writing.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

  1. Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

  2. Government guidance for public bodies recommends that the internal procedure contains an assurance that the identity of the whistleblower will be protected, unless falling within one of the specified exceptions, and it also provides appropriate protection to any third parties.

  3. Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

  4. No time frame is specified under local laws and will be determined by the applicable internal policy. Government guidance for public bodies recommends that specific time frames may create difficulties and that a flexible approach be adopted, although there should be a general framework with a set of guiding principles.

  5. The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

  6. Government guidance for public bodies recommends that each body appoints a point of contact for co-ordination of each case, with an appropriate case management system to record and track reports.

  7. Any other follow-up requirements including those for anonymous complaints:

  8. Government guidance for public bodies recommends that whistleblowers should be provided with periodic feedback, advised when the matter is concluded and, if any is taken, informed that appropriate action has resulted. The whistleblower is not generally entitled to know what that action was.

  9. A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

  10. There is no current obligation to provide feedback.

    The Central Bank of Ireland has published its policy online and its policy is not to provide feedback.

    Government guidance for public bodies recommends that feedback be given periodically, in confidence and in contemplation of the overriding purpose of the investigation and any action that ensues.

  11. Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

  12. Government guidance for public bodies does not address this. However, best practice suggests:

    • Carrying out specific training on whistleblowing procedures. Organising meetings with staff to stress the importance of whistleblowing.
    • Posting messages on bulletin boards.
    • Using the company intranet and creating a special newsletter and FAQ aimed at explaining reporting procedures.
  13. Should legal entities take any additional measures in order to comply with the above requirements?

  14. Government guidance for public bodies recommends they should consider strategies for providing appropriate advice (which for the avoidance of doubt does not include legal advice) and support, such as access to Employee Assistance Programs or equivalent services, to workers who disclose wrongdoing. Information should be provided within procedures on the support available that might assist a worker.

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

In respect of protected disclosures made under the 2014 or 2013 Acts, disclosures can be made to the Central Bank of Ireland where the information relates to a firm regulated by the Central Bank or to an individual within such a firm that is involved in wrongdoing.

For offences under section 905 of the Companies Act 2014, the relevant reporting body is the Irish Auditing and Accounting Supervisory Authority.

Several other bodies are designated as prescribed persons for reporting wrongdoings to. These are set out in detail in S.I. No. 339/2014.

b) Is an independent and autonomous external reporting channel already established in the country?

No, although public bodies are required to clearly identify their procedures for whistleblowing.

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

Although local laws do not refer to personal data, entities are required to hold and process all data in compliance with applicable data protection legislation.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

Every public body is required to issue an annual public report detailing the number of protected disclosures, the action taken if any, and any other information relating to the disclosures. The Department of Public Expenditure and Reform is an example of a body responsible for publishing annual reports, and its website states there were no protected disclosures received between 2014 and 2019.

For private companies, there is no obligation. However, best practice suggests keeping track of all reports, investigations and follow-ups.

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

There is no distinction between the protections available to whistleblowers in the private and public sectors.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

Whistleblowers are protected from any penalisation, or threatened penalisation as a result of the disclosure. Penalisation is defined as any act or omission that affects a worker to the worker’s detriment. This includes:

  • Suspension, lay-off or dismissal.
  • Demotion or loss of opportunity for promotion.
  • Transfer of duties, change of location of place of work, reduction in wages or change in working hours.
  • The imposition or administering of any discipline, reprimand or other penalty including financial.
  • Unfair treatment.
  • Coercion, intimidation or harassment.
  • Discrimination, disadvantage or unfair treatment.
  • Injury, damage or loss.
  • Threat of reprisal.

Dismissal of an employee for having made a protected disclosure is deemed to be automatically unfair regardless of whether the employee has one year’s continuous service or not, which is otherwise a requirement for unfair dismissal.

Compensation for such unfair dismissal is 260 weeks’ gross remuneration, which is significantly higher than the normal 104 weeks. Any compensation may be reduced by up to 25% if the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure.

Where a mandatory disclosure is made under the 2011 Act, the employee is also protected from penalisation as under the 2014 Act.

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

There are no specific additional measures of support in the 2014 Act.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

The principal protections from retaliation are for employee whistleblowers and are explained above. See also answers following.

 

e) Does the Local Law provide for any remedial measures, including interim relief measures?

Whistleblowers may seek interim relief if they have been dismissed for making a protected disclosure. The court may make an order for the continuation of the employment.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

 

Whistleblowers are immune from civil liability, other than in respect of defamation, in relation to a protected disclosure, made in compliance with the requirements of the 2014 Act.

Whistleblowers have a defense to a criminal offence provided the disclosure was, or the whistleblower reasonably believed it to be, a protected disclosure.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

There are no sanctions against natural and legal persons for disclosing the whistleblower’s identity. However, a course of action is available that allows the whistleblower to raise a case for any loss suffered as a result.

h) Does the Local Law provide for sanctions in case of false reports?

In the private sector, companies may wish to introduce sanctions in their disciplinary systems against whistleblowers that file intentional or grossly negligent reports that prove to be unfounded.

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

While this is not required under local law, best practice would be for all entities to have a robust compliance program, which may assist in any defence, in order to demonstrate that all legal obligations have been complied with.

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

No reward programs are envisaged.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

No leniency programs are envisaged.

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

When implementing adequate internal whistleblowing channels as provided for by the EU Directive, companies should consider any reporting that is required to a regulatory body, such as the Central Bank of Ireland, and ensure the whistleblowing channels are clearly established.


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