Protected Disclosures Act 2022 (Ireland): Changes and Implications for Whistleblowers

The Protected Disclosures (Amendment) Act 2022 introduced substantial reforms to Ireland’s whistleblowing framework, enhancing protections for those who report wrongdoing. Key changes include:

1. Criminalisation of Retaliation:
   • Penalising a whistleblower is now a criminal offence. This includes dismissal, demotion, intimidation, or other adverse actions. Convictions can result in fines up to €250,000 or imprisonment for up to two years.
   • This contrasts with earlier legislation, which provided civil remedies for whistleblowers but did not criminalise retaliation.
2. Burden of Proof Shift:
   • Employers must now prove that adverse actions against a whistleblower were not linked to their disclosures. Previously, the burden was often on whistleblowers to establish this link.
3. Expanded Scope of Protection:
   • Protections now extend to private sector employees, volunteers, trainees, shareholders, and contractors. Previously, the law primarily focused on public sector workers.
   • Organisations with 50+ employees are mandated to establish whistleblowing channels, ensuring disclosures can be made confidentially.
4. Independent Reporting Channels:
   • The act created the Office of the Protected Disclosures Commissioner, an independent body that facilitates whistleblowing outside of the workplace and ensures disclosures are acted upon.
5. Interim Relief:
   • Whistleblowers subjected to penalisation can now seek interim relief while claims are being adjudicated. This prevents financial ruin during prolonged legal disputes.
6. Presumption of Penalisation:
   • If a whistleblower claims to have been penalised, the law presumes this occurred unless the employer proves otherwise. This significantly strengthens whistleblowers’ position in disputes.

Whistleblower Protections in England and Wales

Whistleblower protections in England and Wales are governed by the Public Interest Disclosure Act 1998 (PIDA). While PIDA was groundbreaking when introduced, it has faced criticism over its limitations. Key features include:

1. Scope of Coverage:
   • PIDA applies to employees, workers, and agency staff but excludes volunteers, shareholders, and contractors. This is narrower than Ireland’s 2022 amendments.
2. Reporting Channels:
   • Whistleblowers must generally report internally or to a “prescribed body” (e.g., a regulatory authority) to qualify for protection. Independent reporting mechanisms, such as Ireland’s Protected Disclosures Commissioner, are absent.
3. Retaliation Protections:
   • Whistleblowers are protected from unfair dismissal or detriment but must take claims to the Employment Tribunal. There is no criminalisation of retaliation, only civil remedies such as compensation for loss of earnings or injury to feelings.
4. Burden of Proof:
   • Whistleblowers must prove that the detriment they faced was due to their disclosure, a significant hurdle compared to the presumption of penalisation under Ireland’s 2022 reforms.
5. Interim Relief:
   • Interim relief is available in cases of unfair dismissal, but whistleblowers must act quickly (within seven days of dismissal) and prove a strong likelihood of success. This is less generous than Ireland’s system.

Whistleblower Protections in Scotland

Whistleblower protections in Scotland also fall under PIDA. However, there are some differences in implementation due to Scotland’s devolved powers:

1. Public Sector Disclosures:
   • Scotland has additional mechanisms for reporting wrongdoing in devolved areas such as health, education, and policing. Whistleblowers in the NHS can use the Independent National Whistleblowing Officer (INWO), offering a level of support that mirrors Ireland’s Protected Disclosures Commissioner.
2. Support Networks:
   • Scotland has broader support frameworks through bodies like Protect, a charity offering advice to whistleblowers, though these are not statutory protections.

Comparison: Ireland vs England, Wales, and Scotland

Key Observations

1. Ireland’s Progressiveness:
   • Ireland’s 2022 amendments place it at the forefront of whistleblower protection by introducing criminal penalties, reversing the burden of proof, and expanding protection to a wider group of individuals.
2. Gaps in UK Frameworks:
   • The UK framework under PIDA, though once pioneering, has stagnated. It lacks criminal penalties and independent reporting mechanisms. Scotland’s INWO addresses this gap partially but is limited to specific sectors.
3. Presumption of Penalisation:
   • Ireland’s presumption of penalisation significantly reduces the burden on whistleblowers. In contrast, UK laws still require whistleblowers to demonstrate a direct link between their disclosure and the detriment faced, often a challenging task.
4. Broader Protection in Ireland:
   • By including contractors, volunteers, and trainees, Ireland’s legislation better reflects modern working practices. The UK’s narrower scope excludes many individuals in precarious roles.

Conclusion

Ireland’s Protected Disclosures Act 2022 provides a robust model that significantly enhances whistleblower protections through criminalisation of retaliation, expanded scope, and independent oversight. In contrast, whistleblower protections in England, Wales, and Scotland lag behind, relying on a civil framework under PIDA that places undue burdens on whistleblowers and lacks proactive enforcement mechanisms. The UK could benefit from revisiting and modernising its whistleblowing laws to align with international best practices, taking lessons from Ireland’s progressive approach.