Protected Disclosures Act and Code of Practise on Whistle-blowers

Protected Disclosures Act The Protected Disclosures Act 2014 provides a statutory framework whereby employees can raise concerns and disclose information regarding potential wrongdoing. Whistleblowing is a term which refers to when an employee passes information regarding instances of alleged wrongdoing in the workplace which they have witnessed i.e. alleged breach of health and safety in the workplace. This is also known as making a ‘disclosure’. In order for this disclosure to be classified as whistleblowing, the employee must reasonable believe two things

1. that the employee is acting in the public interest; and
2. the disclosed information is concerned with a form of wrongdoing such as criminal offences, endangering somebody’s health and safety; fraud, failure to comply with legal obligations or any miscarriages of justice.

The Act protects any employee who makes a disclosure from any adverse treatment or victimisation and sets out a stepwise process for employees to follow. The motivation of the employee to raise such disclosures is irrelevant as to whether or not it is a protected disclosure. What is required is that the employee has a reasonable belief as to the wrongdoing. A Code of Practice has been prepared to give guidance to employers on the best principles to follow when such a disclosure has been made. As such what should an employer do if they receive such a disclosure? Prescribed Persons The Act allows for a tiered system to raise disclosures, namely:

• internally
• to a prescribed person
• to the relevant Minister,
• to a legal representative,
• to disclose in other channels.

The Code of Practice explains the role of the ‘prescribed person’ responsible for investigating the disclosure is to receive and investigate matters arising from disclosures relating to any wrongdoings in relation to which a disclosure may be made. Examples of such Bodies are NERA or the Health and Safety Authority. What if the employee consults someone external about the disclosure? The employee may seek advice of a Trade union representative or legal advisor on the disclosure. It is important to note that a disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union official is protected. Confidentiality The employer should take all reasonable steps to ensure that the confidentiality of the employee is maintained. An employee who makes a disclosure may waive their right to confidentiality if they so wish . Any penalisation of an employee making such a protected disclosure should not be tolerated by the employer and the company disciplinary procedure invoked where necessary for any attempts to penalise an employee making such a claim. Workplace Policy The Protected Disclosures Act 2014 outlines that it is best practise for Companies to draft up a Whistle-blowing Policy. There is no one-size fits all whistleblowing policy and they will vary depending on the size and nature of an organisation. The policy should include a clear explanation of whistleblowing, the Company’s procedure for dealing with disclosures and a clear timeframe for handling disclosures. The policy should also outline that the process is entirely confidential and give an understanding of what sort of feedback and involvement an employee who makes a disclosure will receive (anonymous whistle-blowers may not always be able to receive feedback however). Whistleblowing policies should outline the Company’s commitment to promoting a whistle-blowing culture and an emphasis that penalisation following a disclosure will not be tolerated. Whistle-blowers should be informed that they will not be required to provide evidence after a disclosure. Designated contact person The policy should outline exactly who the policy applies to and provide the information of designated contact persons within a Company to which disclosures can be made. A designated contact person may be an immediate manager in the first instance. However, the employee should have an option of bypassing the immediate manager if they wish to do so. All the types of wrongdoing that may be reported should also be outlined in the policy.  It may also be good practise to explain the difference between the Whistle-blowing policy and the Grievance Procedure. Protections under the Act The Protected Disclosures Act 2014 outlines a number of protections for employees who make disclosures. Essentially, employees are protected from penalisation and dismissal after making a disclosure where dismissal is found to have been due to making this disclosure. Employees who feel they have been penalised for making a disclosure may refer the matter to an Adjudicator who will hear the case and issue a decision based on whether they feel the complaint was well founded or not. This decision may be appealed to the Labour Court. An employee who is dismissed after making a disclosure may have a case for unfair dismissal even where they do not have twelve months service. Protection in the form of “interim relief” may also be granted on application to the Circuit Court to prevent an unfair dismissal from proceeding before any action has been taken. If you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.