- 19 June 2014
- Posted by: Laura Graham
- Categories: Employment and Regulatory, Employment Law
Protected Disclosures Act 2014 (“The Act”)
1. What is the Act about?
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.
2. Who is protected?
A “Worker” which includes:-
- Employees (public and private)
- Agency staff
- Former employees
- Job seekers
3. What is a Protected Disclosure?
A “protected disclosure” means a disclosure of relevant information made by a worker.
4. What is “relevant information?
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.
5. What is a “Relevant Wrongdoing”?
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.
6. What about the Worker’s motivation?
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.
7. The 5 Avenues of 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
Internal route – Preferred route for employers, as it will give the employer an opportunity to resolve the issue.
To benefit from protection, employee has to have a reasonable belief that he is disclosing a relevant wrongdoing discovered through work.
7.2. Avenue Two – A Prescribed Person i.e. a Body/Person prescribed by the Minister
Disclosures to Regulators i.e. Health and Safety Authority, Revenue Commissioners, Director of Corporate Enforcement etc.
If worker choses to disclose in this manner he must reasonably believe that (i) the relevant wrongdoing falls within the remit of the Regulator and (ii) that the information disclosed/any allegation is substantially true.
7.3. Avenue Three – Disclosure to Minister (if worker works for Public Body)
7.4. Avenue Four – Legal Adviser
7.5. Avenue Five – A Third Party including Media
The final tier is a wider disclosure to a Third Party which includes disclosure to the media. A disclosure is made in this way if:-
7.5.1. the worker reasonably believes that the information disclosed, and any allegations in the disclosure, are substantially true;
7.5.2. the disclosure is not made for personal gain;
7.5.3. any one or more of the following conditions is met:-
- that at the time the worker makes the disclosure the worker believes that he would be subject to penalisation by the worker’s employer if he made the disclosure to employer, Regulator or Minister;
- if no Regulator prescribed, the worker reasonably believes that it is likely that evidence relating to the wrongdoing will be concealed, or destroyed;
- the worker has previously made a disclosure;
- the relevant wrongdoing is of an exceptionally serious nature;
7.5.4. and in all the circumstances of the case it is reasonable for the worker to make the disclosure.
8. What Protections are available under the Act?
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.
9. Protecting the Whistleblower’s Identity
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.
10. Redress under the Act
Employees (as opposed to workers) who have been dismissed as a result of making a protected disclosure may take a claim under the Unfair Dismissals Acts. An award for dismissal for making a protected disclosure is a maximum award of 5 years remuneration for dismissal. Such a dismissal is automatically deemed to be unfair and there is no qualifying service to ground such a claim.
Employees (as opposed to workers) who has been penalised can make a complaint to a Rights Commissioner (within 6 months beginning on the date of contravention or 12 months in exceptional circumstances). The Rights Commissioner can award up to 5 years remuneration for such penalisation outlined at 5.1 above.
Be aware that award of 5 years remuneration ARE NOT confined to dismissal. An award of up to 5 years could be a result unfair treatment if a claim is successfully brought under the Act.
11. What all this means for Employers
Employees are likely to try to bring normal workplace grievances within the definition of a protected disclosure in an effort to claim the substantially higher level of redress under the Act or to seek interim relief from the Circuit Court.
To mitigate against the risk, employers should establish and maintain internal procedures for making a protected disclosure (public sector employers have an obligation to do so). The existence of such a policy will be very important in defending a claim under the Act.
The policy should set out what a worker should do if a relevant wrongdoing comes to their attention and the reporting channels available internally. It should encourage internal reporting. It should also seek to differentiate between normal grievances and protected disclosures. In some instances, during the investigation of a protected disclosure, the identity of the whistle-blower may need to be disclosed and the circumstances in which that should happen should be made clear to workers in the policy.