Whistleblowing: The Protected Disclosures Act 2014

In what can only be described as a ground-breaking development in Irish employment law, the Protected Disclosures Act 2014 has now been signed into law as of 15 July 2014. This Act is Ireland’s first overarching statute enabling protected disclosures, better known as whistleblowing, to be made by workers in all sectors of the economy. This legislation may have significant ramifications for Irish employers who strongly urged to seek advice on the impact it will have. Why do we need a “Whistleblowers” Act?

1. 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
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, lay off, demotion etc.

Key Features of the Act

• The Act will for the first time provide comprehensive coverage for all employees, contractors, agency workers, members of the Garda Síochána 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;
• 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 from civil or criminal liability; and
• Compensation up to 5 years’ remuneration for dismissals arising from such disclosures.

Impact for Employers

• Employers should 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. Thus, if an employee makes a protected disclosure on day one of their service and they are dismissed then they may still claim unfair dismissal.
• 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 relevant 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.
• The maximum compensatory award under the Unfair Dismissals Act is increased from 2 years to 5 years remuneration for dismissals arising from a protected disclosure.

What is a Protected Disclosure? A protected disclosure is deemed to be a disclosure of relevant information which:

• “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”.

What is a Relevant Wrongdoing? The following list is 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 likely to fail to comply with any legal obligation, other than one rising 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, or
8. that information in respect of issues in the above has been, is being or is likely to be concealed or destroyed

Importantly, the Act at (b) above explicitly excludes breaches of an employee’s contract. Thus, employees cannot deem themselves to be protected whistleblowers where they are 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. Thus, 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 have 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 is 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 place of work,
• reduction in wages or change in working hours,
• the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
• unfair treatment,
• coercion, intimidation or harassment, 35
• discrimination, disadvantage or unfair treatment,
• injury, damage or loss, and
• threat of reprisal;

Conclusion This piece of legislation can have a significant impact on Irish employers going forward and if any employer wishes to discuss the impact of the Act then please contact the 24 Hour Advice Service on 01 855 50 50 where one or our experienced HR experts will be on hand to assist you with your query.