Protected disclosures
The CCPC and protected disclosures
Prescribed persons are designated to receive external protected disclosures by order of the Minister for Public Expenditure and Reform. They are usually the Heads of public bodies that have responsibility for the supervision or regulation of a particular sector.
The Competition and Consumer Protection Commission (CCPC) is prescribed by Statutory Instrument No. 367 of 2020 – Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020, to receive protected disclosures from external workers that are not CCPC workers.
What is a protected disclosure?
A protected disclosure is defined in the 2014 Protected Disclosures Act (“the 2014 Act”) as a disclosure of information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings, which came to the attention of the worker in connection with the worker’s employment and is disclosed in the manner outlined in the 2014 Act. This is sometimes referred to as “whistleblowing”.
Relevant wrongdoings include: criminal offences; failure to comply with a legal obligation (other than your contract of employment); miscarriage of justice; endangerment of health and safety; damage to the environment; unlawful or improper use of public funds; oppressive, discriminatory or negligent behaviour by a public body; breaches of EU law; and concealing or destroying evidence of wrongdoing.
The 2014 Act was updated by the Protected Disclosures (Amendment) Act 2022 (‘the 2022 Act”). The 2022 Act also transposes the EU Whistleblowing Directive into Irish law.
New protections have been brought in under the 2022 Act. Those new protections will be commenced or ‘take effect’ from 1 January 2023.
Under the 2014 Act, the following workers are protected:
- Employees or former employees
- Trainees
- People working under a contract for services
- Independent contractors
- Agency workers
- People on work experience
From 1 January 2023, under the 2022 Act, the following workers are also protected:
- Unpaid trainees
- Board members
- Shareholders
- Volunteers
- Job applicants
Making a protected disclosure to the CCPC
In order to make a protected disclosure to the CCPC, the report must be a protected disclosure under the Act, the reporting person (i.e. a worker) must reasonably believe that the information disclosed, and any allegations contained in it, are substantially true and that the relevant wrongdoing relates to matters falling within the remit of the CCPC: the enforcement of consumer protection law, competition law, the review of mergers or acquisitions notified to the CCPC and/or breaches of Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act).
It is recommended that, at a minimum, reports should include the following details:
- that the report is a protected disclosure;
- the reporting person’s name, position in the organisation, place of work and confidential contact details;
- the date of the alleged wrongdoing (if known) or the date the alleged wrongdoing commenced or was identified;
- whether or not the alleged wrongdoing is still ongoing;
- whether the alleged wrongdoing has already been disclosed and if so, to whom, when, and what action was taken;
- information in respect of the alleged wrongdoing (what is occurring / has occurred and how) and any supporting information;
- the name of any person(s) allegedly involved in the alleged wrongdoing (if any name is known and the worker considers that naming an individual is necessary to report the wrongdoing disclosed); and
- Any other relevant information
Protected disclosures should be made to the Chairperson of the Commission. All disclosures received will be taken seriously and will be addressed appropriately. A protected disclosure can be made to the CCPC by any of the following ways:
- Email to protecteddisclosures@ccpc.ie
- Dedicated phone line: 01 402 5599. (Telephone calls are not recorded but please note that voicemails are recorded and access to the email inbox or voicemail system is restricted solely to persons designated to receive and handle reports)
- By post to Protected Disclosures Section, Competition and Consumer Protection Commission, Bloom House, Railway Street, Dublin 1, D01 C576.
- In person at the CCPC’s offices at a time and date agreed with the reporting person, to meet the designated person for the purposes of making a report
Please note, a CCPC employee may be designated to investigate the disclosure a Member has received.
Confidentiality
The CCPC understands the need for confidentially and to protect the identity of the reporting person making a protected disclosure, in particular not disclosing the identity of the reporting person without their explicit consent, as set out in the 2022 Act. (There are some exceptions and they are also set out in the Act.)
The CCPC will ensure a confidentiality regime and protect the identity of the reporting person and persons concerned through rigorous access rights and controls; ensuring technical and organisational measures are in place; and by applying the data protection rights exemptions to ensure the CCPC can prevent and address attempts to hinder reporting or to impede, frustrate or slow down follow-up, in particular investigations, or attempts to find out the identity of persons concerned and reporting persons.
If you are concerned that your identity is not being protected by the CCPC, you should notify the CCPC as soon as practicable. Such concerns will be reviewed and appropriate action taken where necessary.
CCPC procedures
Where a reporting person provides contact details, the CCPC will acknowledge receipt of the disclosure and provide relevant information to them regarding the investigation process within 7 calendar days. Follow up and further contact will be made with them after an initial screening of the disclosure has taken place, and additional information may be sought at this time. The CCPC will diligently follow up on the report (including if it is made anonymously); give feedback, within 3 months, on actions taken or planned (this can be extended to 6 months in certain justified cases), provide feedback in 3-month intervals; and give information on the final outcome of any investigations.
Protection against penalisation
A worker is protected against being penalised either directly or indirectly for making a protected disclosure.
Penalised means if there is any act or omission that is detrimental to the worker, for example, dismissal, unfair treatment or threats of reprisal. Additional types of penalisation from 1 January 2023 include a loss of promotion opportunity, a negative performance review or employment reference or the withholding of training. Workers who make a protected disclosure are also protected from civil and criminal liability for disclosing confidential information.
A disclosure is assumed to be protected until it is proved that it is not protected under the Protected Disclosures Acts, and the employer has to prove that the disclosure is not protected within the meaning of the Acts.
There are external remedies available to workers who believe they have been penalised for making a protected disclosure. These include a claim before the Workplace Relations Commission and a claim for injunctive relief in the Circuit Court. The relevant time limits that apply for bringing a penalisation claim to the Workplace Relations Commission (within 6 months of the penalisation) and the Circuit Court (within 21 days of last instance of penalisation).
Support services and more information
The Speak Up Helpline | Transparency International Ireland
Separate procedure for reporting breaches of the Competition Act 2002
Section 50 of the Competition Act 2002, as amended, (the “2002 Act”) provides certain protections to persons communicating with the CCPC regarding breaches of competition law. Section 50 of the 2002 Act is distinct from the 2014 Act and does not apply to protected disclosures made under the 2014 Act.
Section 50 of the 2002 Act refers to the communication to the CCPC by any person of their opinion that an offence under section 6 or 7 of that Act has been or is being committed or that certain other provisions of the 2002 Act have not been or are not being complied with. Unlike the 2014 Act, section 50 of the 2002 Act is not limited to communications by a worker concerning a wrongdoing which came to their attention in connection with their employment.
Section 50 of the 2002 Act protects a person from (i) liability in damages and (ii) from being penalised by their employer in respect of such a communication to the CCPC where that person has acted reasonably in forming that opinion and communicating it to the CCPC.
For further information on making a competition complaint please see here. Section 22 of the Protected Disclosures Act 2014 requires the publication of an Annual Report each year relating to the number of protected disclosures made in the preceding year and any actions taken in response to such disclosures.
