The Protected Disclosures Act 2014 (“the Act”) has been well publicised and over the last year in our experience, most impact was in the public sector environment. The Minister for Public Expenditure and Reform has recently issued a guidance note to public bodies on the performance of their duties under the Act and this guidance document provides some useful information on how disclosures under the Act should be treated generally. Further information and a copy of the full guidance document can be found here.
By way of background, the Act commenced on the 15 July 2014 and introduced comprehensive protection for workers against penalisation by their employer for whistleblowing. The Act encourages workers to report reasonably held concerns without fear of reprisal. The definition of a “worker” is broadly defined and includes employees, independent contractors, agency workers and trainees.
What is a protected disclosure?
A protected disclosure involves the disclosure by a worker of “relevant information”. Information is considered relevant where it comes to the attention of the worker during the course of his/her employment and the worker reasonably believes that it tends to show one or more “relevant wrongdoings”.
What is a relevant wrongdoing?
The definition of a relevant wrongdoing includes the following:
- Committing an offence;
- Failing to comply with a legal obligation other than one arising under the workers contract of employment;
- A miscarriage of justice;
- A threat to the health and safety of an individual;
- Damage to the environment;
- Unlawful or improper use of public funds or resources;
- An act or omission by a public body that is oppressive, discriminatory, grossly negligent or that constitutes gross mismanagement; or
- Information in relation to any of the above is likely to be concealed or destroyed.
Protection for whistle-blowers
A worker that makes a protected disclosure under the Act is protected from penalisation (or a threat of penalisation) by his or her employer. Penalisation includes dismissal, suspension, demotion, and disadvantaged or unfair treatment. A worker who believes they have been penalised for making a protected disclosure can apply to an adjudication officer for relief. Workers may also apply to the Circuit Court for interim relief and the Court may grant reinstatement or re-engagement. The motivation for making the disclosure is irrelevant; however deliberate false reporting will not meet the reasonable belief test and will not be protected. A worker may also be subject to disciplinary proceedings where they knowingly make a false disclosure.
The Act provides for the protection of the identity of a whistle-blower except for certain limited circumstances as outlined in the Act and where the disclosure is necessary in the public interest or as required by law.
For an employer….
There is no service requirement for workers seeking relief having made a protected disclosure, unlike the 12 month service requirement for an unfair dismissals claim. An employee who is dismissed as a result of making a protected disclosure may be awarded up to five years’ salary under the Act. An employer should be live to any attempted abuse of the Act where an employee uses it as a shield against an employer trying to legitimately address disciplinary issues under the appropriate policy.
Employers should have a robust protected disclosures policy in place to deal with any disclosures made by workers and have training in place so designated staff know how to deal appropriately with a disclosure.
Public sector bodies are obliged to have a policy in place under the Act and are also required to prepare an annual report in relation to any disclosures made under the Act.
Employers should ensure the existence and terms of the policy are communicated to its workers and training should be provided to staff members appointed to receive protected disclosures.