Guiding You Forward

Protected Disclosures Act 2014 – are you prepared?

Protected Disclosures Act 2014

The Protected Disclosures Act came into operation in July 2014. The Act aims to promote the disclosure of information relating to wrongdoing in the workplace by offering protection for workers from penalisation in circumstances where they make a protected disclosure. On a broader level, it is part of an anti-corruption mechanism and a key ingredient in the promotion of a culture of public accountability and transparency. The Act is a single overarching piece of legislation. Prior to the Act, whistleblowing protection existed on a sectoral basis in areas such as health and competition.

 

Key aspects of the Act

Who is protected?

The Act protects workers in all sectors. The concept of worker is widely defined and extends to employees, contractors, consultants, agency staff, former employees, temporary employees and interns/trainees.

What is a ‘protected disclosure’?

This is also widely defined. It means disclosure of relevant information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings that came to the attention of the worker in connection with their employment.

Relevant wrongdoings are defined in an exhaustive list and include the following:

  • the commission of an offence
  • a miscarriage of justice
  • non-compliance with a legal obligation
  • health and safety threats
  • misuse of public monies
  • mismanagement by a public official
  • damage to the environment
  • concealment or destruction of information relating to any of the foregoing

The motivation for making the disclosure is irrelevant. However, there is provision allowing for the reduction of compensation payable under the legislation to be reduced by up to 25% where it transpires that the investigation of the relevant wrongdoing concerned was not the only or main motivation for making the disclosure.

The Act is retrospective in effect so that a disclosure made before the Act commenced may be a protected disclosure.

What are the disclosure channels?

The Act provides for a number of distinct channels for those who wish to make a protected disclosure including:

  • to an employer or other responsible person
  • to a prescribed person
  • to a minister
  • to a legal advisor
  • to other persons

Internal
A worker may make a protected disclosure to their employer where they reasonably believe that the information shows or tends to show wrongdoing. If the worker reasonably believes that the wrongdoing relates to the conduct of some person other than their employer or to something for which some other person has legal responsibility, then the disclosure can be made to that person.

Prescribed persons
The Act provides for the Minister to prescribe a wide list of prescribed persons. A recent Statutory Instrument was passed, setting out 72 bodies that have been designated prescribed persons for the purposes of the legislation. Where a worker chooses to disclose in this manner, they must reasonably believe the information disclosed, and any allegation contained in it, to be substantially true.

Minister
A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.

Legal advisor
A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union official or an official of an excepted body is protected. There is no threshold of belief in this category.

Other disclosures
There is also provision for disclosure in other circumstances, that is, disclosure potentially into the public domain such as to the media, where the standard for reporting is significantly higher.

In order for such a disclosure to be protected the worker must:

  • reasonably believe that the information disclosed is substantially true
  • not make the disclosure for personal gain
  • believe that the making of the disclosure is in all the circumstances reasonable

In addition one or more of the following conditions must be met:

  • At the time of making the disclosure, the worker reasonably believes that they will be subject to penalisation by their employer if the disclosure was made to the employer.
  • In a case where there is no prescribed person in relation to the wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if the disclosure is made to the employer.
  • The worker has previously made a disclosure of substantially the same nature to their employer or a prescribed person and no action was taken.
  • The relevant wrongdoing is of an exceptionally serious nature.

In determining whether the disclosure is, in all the circumstances, reasonable regard should be had to a number of factors including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether the disclosure is made in breach of a duty of confidentiality.

What are the protections?

The Act provides whistleblowers with the following specific protections:

  • Protection from dismissal for having made a protected disclosure.
  • Protection from penalisation by their employer.
  • Civil immunity from actions for damages.
  • A qualified privilege under defamation law.
  • A right of action in tort where a whistleblower or a member of their family experiences coercion, intimidation, harassment or discrimination at the hand of a third party.
  • Protection of their identity subject to certain exceptions.
  • Immunity from criminal liability for making a protected disclosure.

The protections also remain available if the information disclosed on examination does not reveal wrongdoing. Deliberate false reporting will not meet the reasonable belief test and is accordingly not protected.

Public sector bodies

All public sector organisations must establish and publish internal procedures for protected disclosures.

Contracting out

Any contractual clause purporting to limit the operation of the Act and preclude a worker from making a protected disclosure is void.

Other points to note

  • Compensation of up to five years’ remuneration can be awarded in an unfair dismissal case for having made a protected disclosure.
  • An application for interim relief can brought to the Circuit Court by an employee requesting their reinstatement or reengagement pending the hearing of the unfair dismissal claim.
  • Service limitations that usually apply in the case of unfair dismissals are set aside in the case of protected disclosures.

Takeaways

  • Ensure a whistleblowing policy is put in place. This is a mandatory requirement for public sector bodies. As a matter of best practice, it is prudent for private sector employers to put policies in place as employers cannot contract out of the provisions of the Act.
  • Ensure training and awareness are provided about the policy so that all staff have an awareness and an understanding of what whistleblowing entails.
  • Monitor on an ongoing basis the effectiveness of the policy and review/amend as needed.
  • Consider appointing a dedicated whistleblowing liaison officer and, if so, ensure they receive appropriate training on how to deal with and manage whistleblowing complaints.

 

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.

 

Source: CIPD article