Legislation to enable workers to make protected disclosures, better known as whistleblowing and protect them from detrimental treatment once the disclosure has been made. The aim of the Act is to eliminate any deterrents or barriers to people making disclosures.

There is no legal obligation imposed on workers to disclose any wrongdoing.

Commenced on 15 July 2014 BUT has retrospective effect i.e. a disclosure made before the commencement of the Act may be a protected disclosure.

A “Worker” which includes:-

• Employees (public and private)
• Contractors
• Trainees
• Agency staff
• Former employees
• Job seekers

A “protected disclosure” means a disclosure of relevant information made by a worker.

Information is “relevant information” if:-

• in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
• it came to the attention of the worker in connection with the worker’s employment.

In order for the disclosure to a protected disclosure, and for the worker to be protected under the Act for making that disclosure, it must refer to one or more relevant wrongdoings.  An exhaustive list of relevant wrongdoings are contained in the act:-

• Offence — has been, is being or is likely to be committed;
• Legal Obligation — has failed, is failing or is likely to fail to comply with a legal obligation (excludes under contract);
• Miscarriage of Justice — has occurred, is occurring or is likely to occur;
• Health and Safety — of an individual has been, is being or is likely to be endangered;
• Environment — has been, is being or is likely to be damaged;
• Public monies — unlawful, improper use of funds or resources of a public body has occurred, is occurring or is likely to occur;
• Mismanagement by public body;
• Information re any of the above is likely to be concealed or destroyed;
• It is NOT a protected disclosure if a claim of legal professional privilege could be maintained in legal proceedings if the disclosure is made to a person to whom the information was disclosed in the course of obtaining legal advice.

A Worker’s motivation for making the disclosure is not relevant for the purpose of the legislation.  However, there is a provision in the legislation which provides that compensation payable under the Act may be reduced by 25% where the investigation concerned was not the only or main reason for making of the disclosure.

The Act incentivises workers to disclose to their employer in the first instance, as it is the lowest threshold to come within the protection of the Act.  It also gives the employer an opportunity to act swiftly and gives them an opportunity to deal with it.  There is a stepped disclosure regime.  Certain conditions are attached if you go through the other channels.

7.1. Avenue One – Employer or person identified by the  Employer

An employee (as opposed to the wider definition of a worker) who makes a protected disclosure is protected from penalisation or the threat of penalisation.  Penalisation means any act or omission that affects the worker to the worker’s detriment and in particular includes:-

• suspension, lay-off or dismissal;
• demotion or loss of opportunity or 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 penalty);
• unfair treatment;
• coercion, intimidation or harassment;
• discrimination, disadvantage or unfair treatment;
• injury, damage or loss, and
• threat of reprisal.
• Immunity for civil liability (damages) for any person making a protected disclosure.
• Qualified privilege under defamation law.
• Right of action in tort where a whistle-blower or third party experiences coercion, intimidation, harassment or discrimination.
• Not a criminal offence to make a whistleblowing report which is a protected disclosure under the Act.

The Act seeks to protect the identity of the whistle-blower.  The Act focuses on the substance of the disclosure as opposed to the identity of the person who made that disclosure.

There are some exceptions to protecting the identity of the maker of a protected disclosure:-

• all reasonable steps were taken not to disclose the identity;
• reasonable belief that maker of the protected disclosure would not object to his identity being revealed;
• disclosure of identity is necessary for the effective investigation of the relevant wrongdoing concerned, the prevention of risk to security of the State, public health, public safety or the environment, or the prevention of crime or prosecution of a criminal offence or in the public interest;
• If the whistle-blower’s identity is not maintained and the whistle-blower suffers any loss because his identity is disclosed, he can take action against the person to whom the disclosure was made and who revealed the identity of the whistle-blower.