Webinar on the Practical Implications of the new Irish Protected Disclosures (Amendment) Act 2022
On 15 February 2023, Maynooth University, Department of Law & Criminology and the European Whistleblowing Institute (EWI) hosted their first joint event. This event was a one-hour webinar that delved into the practical implications of the Irish Protected Disclosures (Amendment) Act 2022, which transposed the EU Whistleblowing Directive into national law, for employers, prescribed persons, and reporting persons.
By Dr Lauren Kierans BL – Maynooth University
Simon Gerdemann (Photo: screencapture of the webinar)
The webinar was facilitated by Dr Simon Gerdemann, LLM (Berkeley), principal investigator of the German Research Foundation’s project on the ‘Impact Analysis of German and European Whistleblowing Law’, University of Göttingen.
Dr Lauren Kierans BL
Lecturer in Law, Department of Law & Criminology Maynooth University and Co-Founder & Director of Education at the EWI
The attendees first heard from Dr Lauren Kierans BL, Lecturer in Law, Department of Law & Criminology Maynooth University and Co-Founder & Director of Education at the EWI. Dr Kierans spoke about the background to the introduction of Ireland’s first pan-sectoral whistleblowing legislation, the Protected Disclosures Act 2014, and how this has been heralded internationally as representing best in class regarding best practice principles for protecting whistleblowers. However, she emphasised that the 2014 Act was concerned only with protection and did not require the recipients of the disclosures to address the wrongdoing. She highlighted that this is one of the key amendments to the Irish legislation. Dr Kierans brought attendees through the legislative process of Protected Disclosures (Amendment) Act 2022 in transposing the EU Whistleblowing Directive into national law. She then addressed the statutory requirements for a disclosure to constitute a protected disclosure. She also set out the disclosure channels under the legislation. Finally, she highlighted the various new protections and criminal penalties introduced under the 2022 legislation.
Kenan Furlong
Partner in A&L Goodbody’s Litigation and Dispute Resolution Department
The next speaker was Kenan Furlong, Partner in A&L Goodbody’s Litigation and Dispute Resolution Department, where he leads the White-Collar Crime Group and the Corporate Reputation team. Furlong addressed the obligations on employers under the new legislation. He focussed on two issues in particular, first, the obligation to protect the reporting person’s identity and, second, on the reporting person as stakeholder in the whistleblowing process. In respect of the first issue, he recommended that employer’s should implement specific plans to avoid disclosing the reporting person’s identity. He set out options in this regard, such as using password protected documents and redaction. He also advised that employer’s assess alternative means of progressing the investigation into the disclosure without disclosing the reporting person’s identity and advocated that there is frequently an alternative option. He also emphasised that employer’s need to be cognisant of the risk of revealing the reporting person’s identity indirectly and that organisation’s need to take the time to assess the information that they are disclosing. In relation to the second issue, Furlong emphasised that in relation to providing feedback to the reporting person, it is important to manage expectations. He said that procedural feedback and information on supports can be given but on a case-by-case basis the level of substantive feedback will differ and ultimately, the reporting person cannot dictate the outcome.
Teresa Kelly
Managing Solicitor, Transparency Legal Advice Centre (TLAC)
The attendees were addressed next by Teresa Kelly, Managing Solicitor, Transparency Legal Advice Centre (TLAC), an independent law centre, advising workers on whistleblowing. Kelly focused on the impact of the new legislation on the reporting person. She spoke first about the Supreme Court decision in Baranya v Rosderra Irish Meats Group Ltd [2021] IESC 77, [2022] ELR 73 and how the court had held that a personal grievance could qualify as a protected disclosure under the 2014 Act. However, she flagged that a new exclusionary provision has been introduced under the 2022 legislation to exclude interpersonal grievances from the scope of the Act. She then progressed to discuss what protections are afforded to reporting persons under the legislation. She examined in detail the new interim relief provision under the Act for reporting persons alleging penalisation. She maintained that this provision is ‘ground-breaking’ and stressed that it will have financial implications, as well as reducing damage to the relationship between the reporting person and their employer at an early stage.
Rody Butler
Senior Investigating Officer in the Protected Disclosures Unit in the Garda Síochána Ombudsman Commission (GSOC), Ireland
The final speaker was Rody Butler, Senior Investigating Officer in the Protected Disclosures Unit in the Garda Síochána Ombudsman Commission (GSOC), Ireland. Butler addressed some of the obligations imposed on prescribed persons under the new legislation. He highlighted that prescribed persons are obliged to publish detailed information on their website and set out that this includes, inter alia, conditions for qualifying for protections, contact details, supports, and procedures. He discussed some practical advice for prescribed persons, such as, that there should be separate designated persons dealing with internal disclosures and external disclosures. He also highlighted the importance of training for staff, particularly in light of the obligations imposed on prescribed persons under their primary legislation and the balancing of both sets of statutory requirements. Finally, he emphasised that in contrast to Furlong’s advice regarding internal disclosures, when dealing with external disclosures, the reporting person is often approaching the prescribed person as a subject matter expert and therefore, the prescribed person will frequently work closely with the reporting person.
To access the speakers’ full presentations and the Q&A, the recording of the webinar is available here. Maynooth University, Department of Law & Criminology and EWI wish to extend their gratitude to all the speakers for their participation, and to Dr Gerdemann for facilitating the event.
Dr Lauren Kierans BL is a Lecturer in Law at Maynooth University and lectures on Whistleblowing Law at undergraduate level and as a Professional Certificate.
