The Protected Disclosures Act (‘the Act’) was long awaited, and long anticipated, and has been stated to “set a new standard in terms of international best practice for whistleblower protection”. We have identified the most important points of the legislation for employers to be aware of below.
What does the Act cover?
In summary, the Act protects workers (not just employees – contractors, agency workers, former employees and trainees) from detrimental treatment for having made protected disclosures.
Very importantly, the Act applies to disclosures made prior to the passing of the legislation, not just those made after July 2014.
A “protected disclosure” is one which includes the disclosure of “relevant information”. In order to be deemed “relevant information”, the worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoing”, and the wrongdoing must come to the worker’s attention in connection with her/her employment.
However, the motivation for making a disclosure is irrelevant to whether or not it is protected. As such, there is no good faith requirement, in that once a worker can show a “reasonable belief” that a relevant wrongdoing” is being committed, his/her reasons for disclosing that wrongdoing cannot be questioned. However, if a worker brings a claim under the Act and is awarded compensation, this can be reduced by up to 25% if it is found that investigation of the wrongdoing was not the sole or main motivation for making the disclosure.
What are “relevant wrongdoings”?
These include an offence (which has been, is being, or is likely to be committed), endangerment to an individual’s health and safety, unlawful use of public money or the resources of a public body, and damage to the environment. Failure to comply with a legal obligation is also considered to be a relevant wrongdoing, but not if the obligation arises under the worker’s contract of employment. As such, individual grievances in relation to an employee’s employment should not constitute disclosure of a relevant wrongdoing under the Act.
What protection is afforded by the Act?
Whistleblowers are protected from penalisation under the Act, including for instance, suspension, demotion, loss of opportunity for promotion, transfer of duties or other material detrimental changes to terms and conditions of employment, unfair treatment, intimidation or harassment, discrimination, injury or threat of reprisal. If an employee is dismissed for having made a protected disclosure the potential compensation that may be awarded is up to five years’ remuneration, which significantly exceeds the maximum compensation payable under the Unfair Dismissals Acts 1977-2011.
Anonymity is not guaranteed by the Act, but there is an obligation on the recipient of the disclosure to take all reasonable steps to protect the identity of the discloser, unless the worker has no objection to his/her identity being made know, or such is necessary for the effective investigation of the relevant wrongdoing.
To whom can the disclosure be made?
There is a staggered disclosure process set out in the Act. Workers may, in the first instance, make a protected disclosure to their employer, or to the person who has legal responsibility which is linked to the conduct of a person (where the worker reasonably believes that the relevant wrongdoing relates mainly to the conduct of a person other than his/her employer, or to something for which a person other than his/her employer has legal responsibility).
There are certain designated persons to whom disclosures may be made, where such is appropriate by reason of their position/responsibilities. Employees of public bodies may make disclosures to the relevant Minister in charge of functions relating to that public body. There is also scope to make disclosures to legal advisors in the course of obtaining legal advice.
What about public disclosures (eg to the media)?
The criteria for the protection of a disclosure in the public domain are much more stringent. To be protected, the worker must reasonably believe that the information being disclosed is substantially true, and the disclosure is reasonable in all the circumstances. The disclosure in such circumstances must not be made for personal gain.
There are further criteria which must be fulfilled by the worker in making such a public disclosure, including:
(i) a reasonable belief that he/she will be penalized by his/her employer if the disclosure is made to the employer; or
(ii) a reasonable belief that evidence will be concealed or destroyed if the disclosure is made to the employer, and there is no prescribed person in relation to the relevant wrongdoing;
(iii) the worker must also have previously made a disclosure of substantially the same information to his employer (or a prescribed person); and
(iv) the relevant wrongdoing is of an exceptionally serious nature.
The reasonableness of the worker’s belief will be determined by reference to a number of factors set out in the Act, including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, and also the worker’s compliance with the employer’s internal procedures.
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.