The Protected Disclosures Act 2014 came into law in July of 2014.
The Act provides protection to “workers” against dismissal for having made a protected disclosure. (A “worker” includes employees (public and private sector), contractors, trainees, agency staff, former employees and interns and members of an Garda Siochana).
The Act also provides other protections to employees such as immunity from civil liability and a right of action in tort against anyone who causes him detriment as a result of making the protected disclosure.
The principal parts of the act are Part 2 which deals with protected disclosures to various persons and Part 3 which deals with the protections afforded to the employee.
A protected disclosure involves the disclosure of information by a worker which he believes shows “relevant wrongdoing” and which came to his attention through his employment. The motivation of the employee in making the disclosure is irrelevant.
Relevant wrongdoing is defined as:
|(3) The following matters are relevant wrongdoings for the purposes of this Act—
|(a) that an offence has been, is being or is likely to be committed,
|(b) 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 or other contract whereby the worker undertakes to do or perform personally any work or services,
|(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
|(d) that the health or safety of any individual has been, is being or is likely to be endangered,
|(e) that the environment has been, is being or is likely to be damaged,
|(f) 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,
|(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
|(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
|(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
|(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
The disclosure can be made to the employer or other responsible person.
It may also be made to a prescribed person-that is, a person prescribed by the Minister for Public Expenditure and Reform as suitable to receive disclosures eg a regulatory body.
It can also be made to a legal advisor or trade union advisor or to a government Minister.
There is also provision for disclosure to the media, or into the public domain, but the standard required of the worker is higher. For example, he must
- reasonably believe that the information disclosed is true
- not make the disclosure for personal gain
- making the disclosure is reasonable
- the wrongdoing is of an exceptional nature
- reasonably believe that he would be penalized if he disclosed to his employer
- reasonably believe that the evidence will be destroyed
- the worker has previously made a similar disclosure but nothing has been done.
Reliefs for worker
Breaches of the Protected Disclosures Act 2014 can lead to a number of reliefs for the worker.
- These include an award of 5 year’s remuneration to the employee for an unfair dismissal as a result of a protected disclosure by the employee. This is in stark contrast to the maximum award under Unfair Dismissals legislation of 2 years remuneration. The employee can also seek interim relief from the Circuit Court preventing them from being dismissed pending the hearing of their claim for unfair dismissal as a result of a protected disclosure. See section 11 of the Protected Disclosures Act, 2014.
- protection from penalisation by the employer (section 12 of the Protected Disclosures Act, 2014); a complaint can be made to a Rights Commissioner who can award up to 5 years’ salary to the worker.
- Section 13 of the Act provides a right of action in tort for any detriment suffered as a result of making a protected disclosure. “Detriment” includes a) coercion, harassment, or intimidation; b) discrimination, disadvantage; c)injury, damage or loss, d) threat of reprisal.
- Section 14 of the Protected Disclosures Act, 2014 provides immunity from civil liability for making a protected disclosure
- Section 15 provides that it shall not be a criminal offence to make a protected disclosure
- Section 16 provides protection to protect the identity of the whistleblower.
The employee can also bring a claim under the Protected Disclosures Act 2014 without any service requirement, unlike the requirement of 12 month’s service for an unfair dismissal claim.
So the employee can bring a protected disclosure on the 1st day in the job.
Employers are naturally worried about this as it affords a degree of protection to the employee which could be abused to prevent dismissal on reasonable and fair grounds unrelated to the protected disclosure.
Employers are also concerned that employees are protected where they wrongly believe that particular information is true. This applies even where the information does not amount to an offence.
The UK Court of Appeal decision in Babula v Waltham Forest College was a decision in such a case and held that the employee could not be expected to know that particular facts amounted to a criminal offence.
Despite this, the Act does not give the employee carte blanche to carry on any way they like and then seek the protection of the legislation by making a disclosure.
Also the Act will not protect an employee where the employee fails to comply with his own legal obligations under his contract of employment.
A clear, comprehensive policy to deal with whistleblowing, as opposed to workplace grievances, should be created by the employer. If the employer does not have one he leaves himself open to the discloser having to avail of external disclosure channels which may be more damaging.
It should state:
- the employer takes whistleblowing seriously
- examples of the type of wrongdoing that would be included in “whistleblowing”
- that workers can raise concerns in this area outside their line manager
- that the identity of the whistleblower will be protected and he/she can rely on confidentiality.
Nevertheless, employers will need to be careful that complaints or grievances of employees are dealt with under the grievance procedure and that protected disclosures are dealt with under a separate policy dealing with protected disclosures.
It is easy to imagine situations where an employee’s personal grievance or complaint could link to a broader “public interest” workplace concern.
This is why employers will need clear and separate policies dealing with both grievances and protected disclosures. An employer may have a hard time defending a claim that an employee is being penalised for making a protected disclosure in the absence of a clear whistle-blower policy.
If you need a whistleblower policy for your workplace you will find one in statutory instrument 464 of 2015.
Code of Practice on Protected Disclosures Act, 2014
There is a code of practice prepared by the Workplace Relations Commission setting out best practice in relation to the Protected Disclosures act, 2014.
It-INDUSTRIAL RELATIONS ACT 1990 (CODE OF PRACTICE ON PROTECTED DISCLOSURES ACT 2014) (DECLARATION) ORDER 2015-is set out in statutory instrument 464 of 2015
Trade Secrets-Big Change in 2018
A significant change came into effect in Ireland from June, 2018 in relation to whistleblowing. A new EU wide directive concerning trade secrets (Trade Secrets Directive 2016/943) was given legal effect in Ireland by way of a Regulation which amends Section 5 of the Protected Disclosures act 2014.
This Regulation (Statutory Instrument 188/2018) requires the whistle-blower who uses or reveals a trade secret as part of the protected disclosure to prove their motivation for dong so was in the public interest.
Prior to this change the motivation of the whistle-blower was irrelevant (Section 5(7) Protected Disclosures Act, 2014).
A trade secret must be proved by the trade secret holder or employer and it must be proved that it has commercial value because it is a secret.
If the whistle-blower cannot prove his public concern motivation he can be fined up to €50,000 and/or a term of imprisonment of 3 years.