The Protected Disclosures Act 2014 was enacted on the 15th July 2014 and is Ireland’s first overarching statute enabling protected disclosures, better known as whistleblowing, to be made by workers in all sectors of the economy.
The aim of the legislation is to provide much needed protection for workers who make disclosures of wrongdoing or raise concerns about matters of public interest where knowledge of same comes to them through their employment, and 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, lay off, demotion etc.
Speaking about the legislation coming into effect, Minister Howlin said that it “sets a new standard in terms of international best practice for whistleblower protection. It sends out a very clear message that whistleblowers’ concerns must be listened to and acted on and those who make such reports should not be penalised for doing so.”
The Protected Disclosures Legislation
Key features of the legislation highlighted by the Minister include:-
- The Act will for the first time provide comprehensive coverage for all employees, contractors, agency workers, members of the Garda Siochana and the Defence Forces;
- There will be strong protections against the disclosure of a whistleblower’s identity;
- There will be an absence of any ‘good faith’ or ‘public interest’ test which could otherwise act as a significant deterrent to making a protected disclosure. The aim being to eliminate any deterrents or barriers for people making disclosures;
- The new Act proposes a stepped or tiered disclosure process with the objective that disclosure should be, wherever possible, made internally and at the lowest possible level;
- As a part of the new Act it is stated that an employee may apply to the Circuit Court for interim relief pending the hearing of their unfair dismissal claim. On hearing an employee’s application, if the Court is satisfied that there are substantial grounds for contending that the dismissal results wholly or mainly from the making of a protected disclosure, the Court has the power to ask the employer to reinstate or re-engage the employee pending the full hearing of the claim. If an employer fails to comply with this order, compensation may be paid to the employee;
- Scope is being made for protection of a disclosure made prior to the legislation coming into effect;
- Those making a disclosure will have access to the State’s industrial relations machinery for securing redress against penalisation for having made a protected disclosure. Also the making of a protected disclosure will give a defence of qualified privilege under the Defamation Act and the worker making a protected disclosure will be immune for civil or criminal liability; and
- Compensation of up to five years remuneration for dismissals arising from a protected disclosure.
Impact for Employers
Employers should take note of the Act in order to ensure they are maintaining compliance with any element of the new legislation. A well-structured policy in their employee handbook would be very pertinent as it will set out from an employer’s perspective their obligations are intentions on dealing with those making a “protected disclosure”. Such a policy is a requirement for those in the public sector, and for those in the private sector it would certainly be best practice.
Employer should also be mindful that dismissals arising wholly or mainly from the making of a protected disclosure is automatically deemed unfair and the qualifying service period for the Unfair Dismissals Act is not applicable. The maximum compensatory award under the Unfair Dismissals Act is also increased from 2 years to 5 years remuneration for dismissals arising from a protected disclosure.
