The whys and wherefores of whistleblowing

Whistleblowing – what you need to know as an employer

We’ve all heard of whistleblowing, with The Protected Disclosures Act 2014 essentially providing protection for employees who “blow the whistle”. The legislation is mainly aimed at encouraging and protecting employees when it comes to reporting wrongdoing in the workplace.

Here’s a handy guide to help you understand the Act...

There are two key reasons for needing this act:

1. To provide much needed protection for workers who make disclosures of wrongdoing, or raise concerns about matters of public interest where this knowledge comes to them through their employment.
2. To provide protection for whistleblowers against penalisation i.e. the employer is prohibited from carrying out any act or omission that affects a worker to their detriment including suspension, layoff, demotion etc.

What is a protected disclosure?

A protected disclosure means a disclosure of relevant information that:

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

The act protects ‘workers’ in all sectors. The term “worker” is quite broadly defined and includes:

• Employees (public and private)
• Contractors
• Consultants
• Agency staff
• Former employees
• Temporary employees
• Interns/trainees

There’s also protection within the act regarding the identity of the worker who’s making the disclosure.

What is a ‘relevant wrongdoing’?

The following items are included in the list of relevant wrongdoings for which a worker may make a protected disclosure:

1. That an offence has been, is being, or is likely to be committed.
2. 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.
3. That a miscarriage of justice has occurred, is occurring, or is likely to occur.
4. That the health or safety of any individual has been, is being, or is likely to be endangered.
5. That the environment has been, is being, or is likely to be damaged.
6. 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.
7. That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent.
8. That information in respect of issues in the above has been, is being, or is likely to be concealed or destroyed.

It’s important to note that the Act at (2) above explicitly excludes breaches of an employee’s contract. Thus, employees cannot deem themselves to be protected whistleblowers where they’re simply reporting on breaches of their employment contract.

Blowing the whistle

The Act makes it quite clear that the worker must make their disclosure at the lowest possible level. Therefore, the disclosure ought to be made to:

• The employer
• A prescribed person (e.g. industry regulator, ombudsman, etc)
• To a Government Minister where the worker works in a public body
• To a legal adviser

However, there are some important exceptions to the ‘lowest possible level’ rule. As such, a worker may seek to make a disclosure to other persons/bodies where:

• They’ve previously made a similar disclosure to one of the bodies outlined above.
• They reasonably believe they may be penalised by their employer for making the disclosure.
• They reasonably believe that it’s likely that evidence of the wrongdoing will be concealed or destroyed.
• The wrongdoing is of an exceptionally serious nature.

What is penalisation?

The Act does not provide an exhaustive definition of ‘penalisation’ but does include the following:

• Suspension, lay-off or dismissal
• Demotion or loss of opportunity for promotion
• Transfer of duties, change of location of the place of work
• Reduction in wages or change in working hours
• The imposition or administering of any discipline, reprimand or other penalties (including a financial penalty)
• Unfair treatment
• Coercion, intimidation or harassment
• Discrimination, disadvantage or unfair treatment
• Injury, damage or loss
• Threat of reprisal

This piece of legislation could have a significant impact on Irish employers going forward. If you’re an employer and you need to discuss how this may affect you, speak with one of our HR experts on 0818 923 923 today.