Reporting a Protected Disclosure to the Registrar of Companies

It is important that the disclosure includes as much Information as possible about the alleged wrongdoing.

The disclosure should, at a minimum, include the following details:

  • that the report is a protected disclosure and is being made under the Protected Disclosures Act 2014;
  • the reporting person’s name, 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 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 or has occurred and how) and any supporting information;
  • the name of any person(s) allegedly involved in the alleged wrongdoing (if known) where the worker considers naming the individual is necessary to report the wrongdoing;
  • any other relevant information.

 
A protected disclosure report can be made to the Companies Registration Office using the form available here and emailed to ProtectedDisclosure@cro.ie. Sean Smith has been designated by the Registrar to monitor this email address and to deal directly with protected disclosures.

Reporting a Protected Disclosure by Post
The protected disclosures form can also be posted to:

      Sean Smith,
      Protected Disclosure Designated Person,
      Companies Registration Office,
      Bloom House,
      Gloucester Place,
      Dublin 1

    Please mark the envelope “Confidential for the addressee only”.

    Reporting a Protected Disclosure by Phone
    There is a confidential phone number for making a protected disclosure: (+353) 087 9368795, this number is also monitored by Sean Smith.

    Please Note:

    • Calls to this number are not recorded.
    • Callers to this number can leave a recorded message. This message will not be kept but the designated person will take a detailed note of the disclosure, which will be retained.

     
    The reporting person can request a meeting with the Registrar or the designated person, which will be facilitated within a reasonable period following the making of the request.

    Anonymous Disclosures
    Some persons may wish to make an anonymous disclosure. However, the Registrar may be constrained in investigating the matter without knowing the identity of the reporting person.

    Not having contact details of the reporting person may also make it difficult to keep the reporting person informed on the outcome of their report. If the reporting person does not wish to be contacted, this should be made clear in the report to the Registrar.

    The designated person will acknowledge receipt of a report within 7 days:

    • except where the reporting person explicitly requests otherwise; or
    • the designated person reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person.

     
    The designated person will carry out an initial assessment, including seeking further information from the reporting person if required, as to whether:

    • there is evidence that a relevant wrongdoing may have occurred, and
    • the reported matters fall within the scope and area of responsibility of the Registrar.

     
    Where the designated person decides that there is no evidence that a relevant wrongdoing may have occurred then the designated person will notify the reporting person of:

    • the closure of the investigative process; and
    • the reasons for the decision to close.

     
    Where the designated person decides that there is evidence that a relevant wrongdoing may have occurred, but that the wrongdoing is minor and does not require further follow-up then the designated person will notify the reporting person of:

    • the closure of the investigative process; and
    • the reasons for the decision to close.

     
    The designated person may also close the procedure in the case of repetitive reports where the designated person decides that the report does not contain any meaningful new information about a relevant wrongdoing. In this case, the designated person will notify the reporting person, in writing, of the decision and the reasons for it.

    The designated person may take appropriate action, in accordance with the functions conferred on the Registrar to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned

    Where the process is not closed, and the report has not been forwarded to any other prescribed person, the designated person will notify the reporting person within 3 to 6 months of the date of acknowledgement, depending on the complexity of the reported wrongdoing. Where feedback is not likely to be provided within the 3 months to 6 months period the designated person will notify the reporting person as soon as practicable of the extension of that period. Further feedback intervals of 3 months may be provided on the request of the reporting person until the procedure is closed.

    A worker is protected under the Protected Disclosures Act 2014 and includes:

    • employees and former employees,
    • persons who provide or provided services to another party under contract,
    • agency and former agency workers,
    • board and former board members (including non-executive members),
    • shareholders and former shareholders,
    • trainees and former trainees,
    • volunteers and former volunteers,
    • job applicants,
    • individuals involved in pre-contract negotiations, and
    • members and former members of the Defences Forces (including the Reserves).

     
    The Protected Disclosures Act 2014 also protects workers who make a disclosure by way of an anonymous report. If a worker makes an anonymous report and is subsequently identified and penalised for doing so that worker is entitled to the full protections of the 2014 Act.

    The Responsibilities of the Registrar
    The Registrar is a Prescribed Person under the Protected Disclosures Act 2014, as amended (“the 2014 Act”) by reason of
    Section 7 of the Protected Disclosures Act 2014, and the Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020.

    The Registrar is responsible for all matters relating to:

     
    Limitations on the Functions of the Registrar
    The Registrar can only act on the matters set out in the 2014 Act and cannot investigate every type of wrongdoing.

    The Registrar may refer an issue to either the Corporate Enforcement Agency or the Protected Disclosures Commissioner, both of which have more investigative powers.

    The following matters are relevant wrongdoings for the purposes of the Protected Disclosures Act 2014:

    • that an offence has been, is being or is likely to be committed;
    • that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services;
    • that 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.

     
    Matters concerning interpersonal conflict between the worker and another colleague, or their employer, does not constitute a wrongdoing under the Act.

    Such conflicts should be dealt with through the internal grievance procedure provided for by the employer.

    General Protections
    In general terms, Section 12 of the Protected Disclosures Act 2014 prohibits an employer from penalising or threatening to penalise an employee for having made a protected disclosure. Examples of such penalties include:

    • suspension, lay-off or dismissal;
    • demotion, loss of opportunity for promotion or withholding of promotion;
    • transfer of duties, change of location or place of work, reduction in wages or change in working hours;
    • the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty);
    • coercion, intimidation, harassment or ostracism;
    • discrimination, disadvantage or unfair treatment;
    • injury, damage or loss;
    • threat of reprisal;
    • withholding of training;
    • a negative performance assessment or employment reference;
    • failing to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that they would be offered permanent employment;
    • failing to renew or early termination of a temporary employment contract;
    • harm, including to the worker’s reputation, particularly on social media, or financial loss, including loss of business and loss of income;
    • 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;
    • early termination or cancellation of a contract for goods or services;
    • cancellation of a licence or permit; and
    • psychiatric or medical referrals.

     
    If an employee suffers a penalty as a result of making a protected disclosure, the employee can apply to the Circuit Court for interim relief within 21 days immediately following the date of the last act of penalisation by the employer. An “employee” for the purposes of section 12 of the 2014 Act also includes trainees, volunteers, and job applicants.

    A claim for penalisation may also be brought before the Workplace Relations Commission within 6 months of the penalisation complained of. Where there is ‘reasonable cause’ a complainant may ask the Adjudication Officer to extend the deadline by an additional 6 months.

    In a claim for penalisation before the Workplace Relations Commission, the burden of proof falls to the employer, and penalisation will be deemed to have been a result of the reporting person having made a protected disclosure, unless the employer proves that the act or omission was justified on other grounds.

    Board members and shareholders who suffer penalisation as a result of making a protected disclosure cannot make a complaint to the Workplace Relations Commission but may instead seek redress through the civil courts.

    The identity of the reporting person, or any information which may identify them, will not be disclosed to any person other than those necessary for the processing or transmission of the report without the consent of the reporting person.

    There are a limited number of circumstances in which the consent of the reporting person is not necessary prior to disclosing their identity or information contained within the report and these exceptions are outlined in Section 16 of the 2014 Act.

    They include:

    • where the designated person shows that he took all reasonable steps to avoid disclosing such information;
    • where he believes that the reporting person does not object to the disclosure of such information;
    • where the designated person believes that disclosing such information is necessary for:
        – the effective investigation of the wrongdoing concerned;
        – the prevention of serious risk to the security of the State, public health, public safety or the environment, or
        – the prevention of crime or prosecution of a criminal offence, or
    • where the disclosure is otherwise necessary in the public interest or is required by law.

    The processing of all personal data provided in the reported disclosure will be processed in accordance with data protection law, including the
    General Data Protection Regulation (GDPR).

    The Protected Disclosures Act 2014 provides a lawful basis for the collection and processing of personal data and requires the Registrar to keep certain records and refer reports onto other public bodies in certain circumstances.
    However, any personal data that is not relevant to the handling of a specific report will not be collected or, if collected accidentally, will be deleted without delay.

    In accordance with Section 16B of the 2014 Act, the rights of data subjects can be restricted to the extent necessary and proportionate for the purposes of safeguarding the general public interest, the protection of the data subject or the rights and freedoms of others.

    Rights can also be restricted to the extent, and for as long as is necessary, to address attempts to hinder reporting or to impede, investigations, or attempts to find out the identity of reporting persons.

    The restrictions also apply where it is necessary and proportionate to prevent the disclosure of information that might identify the reporting person, where such disclosure of identity would be contrary to the protections of the 2014 Act; or where exercise of the right would prejudice the effective investigation of the relevant wrongdoing.

    The Protected Disclosures Act 2014 also offers protection to an employee who is dismissed from their employment as a result of making a protected disclosure. Such a dismissal will be regarded as unfair and the employee may take a claim to the Workplace Relations Commission under the Unfair Dismissals Acts 1997 – 2015 for a remedy.

    If the claim for unfair dismissal is successful, the Workplace Relations Commission may direct a course of action:

    • order the re-instatement of the person in the same position they were in before the dismissal;
    • re-engagement in the organisation; or
    • compensation of up to five years’ pay as is just and equitable having regard to all the circumstances of the case.

    It is important to note that anyone who hinders a worker in making a report or brings vexatious proceedings or breaches the duty of confidentiality commits an offence under the Protected Disclosures Act 2014.

    It is also important to note that a reporting person who makes a report containing any information that he or she knows to be false commits an offence.

    Where a person is not in paid employment e.g., a job candidate who is found to have been penalised for making a protected disclosure the maximum compensation which can be awarded is €15,000.

    A person’s motivation for making the protected disclosure may affect the level of compensation awarded. If the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25% less than the amount it may otherwise have been.

    Links

    – Annual Report of the Registrar of Companies for 2022 in accordance with section 22 of the Protected Disclosures Act 2014.
    This Protected Disclosures Annual Report from the Registrar of Companies covers the period from 1 January 2022 to 31 December 2022.

    Under section 22 of the Protected Disclosures Act, 2014 each public body is required to publish an annual report outlining the number of protected disclosures received in the preceding year and the action taken (if any).

    The Registrar of Companies received no protected disclosures in 2022. There were no cases on hand from previous years.

    – Annual Report of the Registrar of Companies for 2021 in accordance with section 22 of the Protected Disclosures Act 2014
    This Protected Disclosures Annual Report from the Registrar of Companies covers the period from 1 January 2021 to 31 December 2021.

    Under section 22 of the Protected Disclosures Act, 2014 each public body is required to publish an annual report outlining the number of protected disclosures received in the preceding year and the action taken (if any).

    The Registrar of Companies received no protected disclosures in 2021. There were no cases on hand from previous years.

    – Annual Report of the Registrar of Companies for 2020 in accordance with section 22 of the Protected Disclosures Act 2014
    This Protected Disclosures Annual Report from the Registrar of Companies covers the period from 1 January 2020 to 31 December 2020.

    Under section 22 of the Protected Disclosures Act, 2014 each public body is required to publish an annual report outlining the number of protected disclosures received in the preceeding year and the action taken (if any).

    The Registrar of Companies received no protected disclosures in 2020. There were no cases on hand from previous years.