Long-awaited legislation for the Protection of Whistleblowers has finally arrived

Julie Austin looks at the impact of the legislation for the Protection of Whistleblowers from an employer perspective.

The Protected Disclosures Act 2014 (the “Act”) was enacted on 15 July 2014 and is Ireland’s first overarching piece of legislation which enables workers to make protected disclosures, better known as whistleblowing. Prior to the introduction of the Act, protection for whistleblowers was contained in numerous pieces of legislation targeted only at specific issues such as child abuse and health and safety matters. The aim of the new legislation is to provide a more general protection for workers who make “protected disclosures” under the Act.

Who does the Act apply to?

The Act provides protection for workers in the public, private and non-profit sectors. The term “workers” includes employees (public and private sector), contractors, trainees, agency staff, former employees and job seekers.

What is a “protected disclosure”?

A "Protected disclosure" means disclosure of relevant information, which in the reasonable belief of the worker, tends to show one or more relevant wrongdoings which came to the attention of the worker in connection with their employment.

"Relevant wrongdoings" are defined in an exhaustive list as:

• 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

Does the disclosure need to be made in good faith?

The worker’s motivation for making the disclosure is not relevant for the purpose of the legislation. The aim of this is to eliminate any deterrents or barriers for people making disclosures. However, compensation payable under the Act may be reduced by up to 25% where the investigation of the relevant wrongdoing concerned was not the only or main motivation for the making of the disclosure.

How are disclosures made?

Workers are required to disclose in accordance with the stepped disclosure regime provided for in the Act. The Act incentivises workers to disclose to the employer in the first instance by attaching certain conditions to disclosures made through other channels. The purpose of encouraging employees to make disclosures to their employer in the first instance is to allow the employer to react swiftly when allegations are made and to provide employers with the opportunity to deal with them effectively to prevent or limit any potential damage.

If, having made a disclosure internally, the employer fails to act on the information disclosed, or the worker does not wish to avail of the internal disclosure channel, alternative channels are provided for under the legislation as follows:

1. Internal disclosure to an employer or other responsible person

A worker may make a protected disclosure to his employer where he/she reasonably believes that the information shows or tends to show wrongdoing or if the worker reasonably believes that the wrongdoing relates to the conduct of some person other than his/her employer, or to something for which some other person has legal responsibility, then the disclosure can be made to that person.

2. Disclosure to a prescribed person

The Minister for Public Expenditure and Reform may prescribe a wide list of "prescribed persons" (e.g. a regulatory body) whose roles and responsibilities are defined by law and are, in his opinion, appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Where a worker chooses to disclose in this manner he/she must reasonably believe the information disclosed and any allegation contained in it to be substantially true.

3. Minister

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

4. 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.

5. Other disclosures

There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain (such as the media) where the standard for reporting is significantly higher. In order for this type of disclosure to be protected the worker must:

1. reasonably believe that the information disclosed is substantially true;
2. that disclosure is not made for personal gain; and
3. the making of the disclosure is in all the circumstances reasonable.

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

1. at the time of making the disclosure the worker reasonably believes that he/she will be subject to penalisation and detriment by his/her employer if the disclosure is made to the employer;
2. in a case where there is no prescribed person in relation to the relevant wrongdoing, the worker reasonably believes that evidence will be destroyed/concealed if a disclosure is made to the employer;
3. the worker has previously made a disclosure of substantially the same nature to either his employer or prescribed person and no action was taken; and
4. the relevant wrongdoing is of an exceptionally serious nature.

In determining whether this disclosure is in all the circumstances reasonable, regard shall 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 disclosure is made in breach of a duty of confidentiality.

Retrospective application

The Act has retrospective effect in that a disclosure made before 15 July 2014 may be a protected disclosure. It is not clear how far back this protection will go.

What protections are available to workers?

The Act provides whistleblowers with the following protections:

• Protection from dismissal for having made a protected disclosure. Compensation of up to five year’s remuneration can be awarded for unfair dismissal on the grounds of having made a protected disclosure. This exceeds the normal maximum compensation available of up to two years remuneration for unfair dismissal.
• An employee who has been dismissed for having made a protected disclosure may apply to the Circuit Court for interim relief. On hearing an employee’s application, if the Court is satisfied that there are substantial grounds for contending that the dismissal results wholly or mainly from the making of a protected disclosure, the Court has the power to ask the employer to reinstate or re-engage the employee pending the full hearing of the claim. If an employer states that they are unwilling to reinstate or re-engage the employer, the Court shall make an order for the continuation of the employee’s contract of employment. If the employer does not comply with the order, compensation may be paid to the employee.
• Protection from penalisation.
• Civil immunity from actions for damages and a qualified privilege under defamation law.
• Right of action in tort where a whistleblower or a member of their family experiences coercion, intimidation, harassment or discrimination at the hands of a third party.
• Protection of their identity. However, this is not absolute and disclosure of identity can occur in specific circumstances where it is necessary for: (i) the effective investigation of the relevant wrongdoing; (ii) the prevention of serious risk to the security of the State, public health, public safety or the environment; (iii) the prevention of crime or prosecution of a criminal offence; or (iv) the disclosure is otherwise necessary in the public interest or is required by law. Importantly, if the person to whom a disclosure was made discloses the identity of the whistleblower, the whistleblower may have a cause of action against that person if the whistleblower suffers any loss as a result.
• Immunity from criminal liability for making a protected disclosure.

Specific requirements for Public Bodies

The Act sets out certain requirements for public bodies including:

• Every public body is required to establish and maintain internal procedures for the making of protected disclosures by workers who are or were employed by the public body.
• Written information in relation to these procedures must be given by the public body to all workers employed by it. The Minister may issue guidance for the purpose of assisting public bodies in establishing and maintaining these procedures and public bodies are required to have regard to this guidance.
• By the 30th of June each year, every public body is obliged to prepare and publish a report detailing the number of protected disclosures made to the public body in the immediately preceding year, the action taken in response to those protected disclosures and any other information in relation to the protected disclosures and the action taken as requested by the Minister. The report must be such a form that it does not enable the identification of the person involved in the matters included in the report.

What this means for private employers

Employers should review any existing policies to ensure they are compliant with the legislation or, where no such policy exists, to put one in place. Putting a whistleblowing policy in place is important for a business for two particular reasons:

1. Firstly, as the definition of “relevant wrongdoing” is very broad, it is envisaged that employees may attempt to dress up normal workplace grievances as protected disclosures under the Act in an effort to seek the higher level of compensation for unfair dismissal under the Act or to apply to the Circuit Court for interim relief. To mitigate against this risk, the policy should provide examples of the types of concerns that may be raised by workers in order to distinguish between normal workplace grievances and protected disclosures.
2. Secondly, during the investigation of a relevant wrongdoing, it may be necessary to disclose to the accused the identity of the whistleblower. In order to protect the investigator or Human Resource personnel from a cause of action by the whistleblower, the policy should make clear the circumstances in which their identity may be disclosed.

For further information on this issue contact Julie Austin Employment and Benefits Associate.

Remember that this article is for information purposes only and does not constitute legal advice. Case law is fact specific and readers should understand that similar outcomes cannot be assumed. Specific advice should always be taken in given situations.