Posted in General Legal Tips on 22 June 2016

The Protected Disclosures Act 2014 provides a legal framework to protect workers who raise concerns about potential wrongdoing in the workplace. The Act provides protection and redress for workers who are dismissed or penalised having reported wrongdoing. The 2014 Act is largely recognised as comprehensive whistleblowing legislation, covering all sectors and providing more protection than previous legislation. It is important to note that the 2014 Act is retrospective in effect. Disclosures made before the 15th July 2014 may be deemed protected disclosure.

Who is protected?
A protected disclosure arises where a ‘worker’ discloses relevant information in a particular manner. A worker is defined as;

  • employee (public or private sector)
  • former employee
  • member of An Garda Síochana
  • contractor
  • agency worker
  • trainee / intern
  • person on work experience

What is relevant information?
In order to constitute a protected disclosure, the worker must have disclosed ‘relevant information’. It is important that the relevant information came to the attention of the worker in connection with their employment. The worker must reasonably believe the relevant information shows wrongdoing.

Examples of Relevant Information
Relevant information showing wrongdoing is widely defined and includes;

  • a criminal offence that has been, is currently or will likely be committed
  • the failure, current failing or likely failure to comply with a legal obligation
  • a miscarriage of justice that has occurred, is occurring or is likely to occur
  • threats to or endangerment of the health and safety of individuals – either past, present or future
  • unlawful or improper use of public funds / mismanagement by a public official that has occurred is occurring or is likely to occur
  • past, present or potential damage to the environment
  • oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body
  • information showing that any of the above acts have been, are currently or will likely be concealed or destroyed.

What about a suspected wrongdoing?
The 2014 Act also covers suspected wrongdoing. If it transpires the worker was incorrect in their belief the worker is nonetheless protected by the 2014 Act provided their belief of wrongdoing was reasonable. A wrongdoing which is the employee’s or employer’s function to detect, investigate or prosecute is not covered under the Act.

Can the whistleblower be identified?
Those who receive protected disclosures or subsequently deal with them may not disclose any information to another person which could identify the whistleblower. An exception arises if identifying the whistleblower is necessary for effective investigation or is required to prevent crime, risks to State security, public health or the environment.

Disclosing to an Employer
The Act encourages workers to make disclosure to the employer. The worker must reasonably believe the information disclosed shows or tends to show wrongdoing.  If the wrongdoing relates to the conduct of a person other than the employer, or relates to something which another person has legal responsibility for, then the disclosure can be made to that person.

Disclosing to a Minister
A worker employed in a public body may choose to make a protected disclosure to the relevant Minister rather than to their employer.

Disclosing to a Prescribed Body
A worker may choose to report to a prescribed body. A prescribed body will have regulatory functions in the area the subject of the allegation. The worker must reasonably believe the wrongdoing is within the remit of the prescribed body and that the information disclosed is substantially true.

Disclosing to a Legal Advisor
A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union or an official of an excepted body is protected.

Disclosing in the Public Domain / Media
A disclosure made in the public domain/media must meet a number of conditions. The standard for reporting is significantly higher. To constitute a protected disclosure;

  • the worker must reasonably believe the information disclosed, or any allegation contained in it, is substantially true
  • the disclosure must not be made for the worker’s personal gain
  • the making of the disclosure must be reasonable

ln addition at least one of following must be satisfied;

  • the relevant wrongdoing is of an exceptionally serious nature
  • at the time of the disclosure the worker reasonably believes they will be subject to penalisation or detriment by the employer
  • the worker has previously made a disclosure of substantially the same nature to his employer or a prescribed person and no action was taken
  • if there is no prescribed person, the worker reasonably believes that evidence will be destroyed / concealed if a disclosure is made to the employer

What protections are available?
A disclosure is assumed to be protected until the contrary is proved. Under the Protected Disclosures Act 2014, it is the employer who has to prove that the disclosure is not protected within the meaning of the Act. The 2014 Act protects whistleblowers in various different ways;

Protection from Penalisation
The Act provides redress for workers who are penalised having made a protected disclosure. The employer is prohibited from penalising or threatening to penalise the worker. The employer is prohibited from causing or permitting anyone else to threaten or penalise the worker. Penalisation occurs where there is an act or omission detrimental to the worker, such as dismissal, unfair treatment or threats of reprisal. If the worker is penalised or threatened, a complaint should be made to the Workplace Relations Commission.

Protection from Dismissal
The worker can be awarded compensation of up to five years' remuneration for unfair dismissal having made a protected disclosure. Unfair dismissal protection does not apply to employees with less than one year of service, trainees or Gardaí. These restrictions do not apply however if the worker was dismissed for making a protected disclosure. There is a restriction on members of the Defence Forces. A worker who was dismissed or threatened with dismissal having made a protected disclosure can apply to the Circuit Court to restrain the dismissal.

The 2014 Act provides for a reduction of compensation by up to 25% where the investigation of wrongdoing was not the main motivation for the making of the disclosure.

Protection via Civil Immunity
The worker has civil immunity from an action for damages and a qualified privilege under defamation law.

Protection via Criminal Immunity
It will not be a criminal offence to make a protected disclosure under the 2014 Act.

Protection via a Right of Action in Tort
The worker has a right of action in tort where they or a member of their family experience coercion, intimidation, harassment or discrimination at the hands of a third party. The worker also has a right of action in tort to protect their identity (subject to certain exceptions). A worker may sue a person who causes detriment to them having made a protected disclosure. A worker may not do this and also look for redress under the unfair dismissals legislation or make a complaint to the Workplace Relations Commission.

Protection from Civil Actions
The 2014 Act provides the worker with immunity from a civil action for damages having made a protected disclosure. If a worker is charged with unlawfully disclosing information, it is a defence that the worker was making what they reasonably thought to be a protected disclosure.

Complaining to the Workplace Relations Commission
If a worker is penalised or dismissed having made a protected disclosure, the worker may bring a complaint to the WRC. The complaint should be made as soon as possible. The adjudicator's decision on the complaint may require the employer to take a specific course of action and/or may award compensation.
The worker or employer may appeal the adjudicator's decision to the Labour Court. The Labour Court may refer a question of law arising in the case to the High Court. The High Court’s decision on the matter is final. The worker or employer may appeal the Labour Court’s decision on a point of law to the High Court. Again, the decision of the High Court is final.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

 


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