The Protected Disclosures Act 2014, which provides protection for workers who are penalised by their employer or suffer a detriment from a third party on account of raising concerns about wrongdoing in the public, private and non-profit sectors, became operational on 15 July 2014. The new legislation is overarching, offering widespread protection and covering all employees, contractors, agency workers, trainees and members of An Garda Síochána and the Defence Forces.
Wrongdoings
The Act includes a broad range of relevant wrongdoings to include criminal offences, breaches of legal obligations, threats to health and safety or the environment, miscarriages of justice, improper use of public funds and/or any attempt to conceal information in relation to such wrongdoings.
The legislation encourages workers to make a disclosure to their employers in the first instance or to another disclosure recipient such as a Government Minister where the person is employed in the public sector. Failing a resolution or any action being taken, the Act provides for a stepped approach to making additional disclosures to third parties.
The Act obliges the person to whom the disclosure is made to take all reasonable steps to avoid revealing the whistleblower’s identity. However, this obligation is not absolute and that person’s identity may be revealed in specific circumstances.
Protection for the worker
The Act contains a number of statutory protections for whistleblowers, including a prohibition on penalising or dismissing workers who report wrongdoing. Compensation of up to five years’ remuneration can be awarded to an employee who succeeds in claiming that he/she was penalised as a result of having made a disclosure (although this award can be reduced where it is shown that the whistleblower’s motivation in making the disclosure was not solely or mainly to have the wrongdoing investigated). An employee who claims to have been dismissed in these circumstances may seek relief from the Circuit Court, including reinstatement or re-engagement pending the determination or settlement of the employee’s claim.
Whistleblowers will also be protected from resulting civil or criminal liability and will have a right of action in tort where the whistleblower, or some other person connected to him/her, suffers detriment as a result of his/her having made a disclosure.
The protection afforded by the legislation will apply to workers who disclose relevant information that, in their “reasonable belief”, tends to show a “relevant wrongdoing.” The absence of a “good faith” or “public interest” test seeks to eliminate any barriers which could otherwise act as a deterrent to a potential whistleblower. Disclosures made anonymously will be protected under the Act.
What this means
While the Act imposes duties on public bodies only to establish whistleblowing procedures and publish annual reports, it would be prudent for all employers to consider putting whistleblowing policies in place as employers cannot contract out of the obligations arising from the new legislation. The Act envisages the issuing in due course of guidelines to assist public bodies in meeting these obligations and no doubt these guidelines will serve a useful purpose for all employers.
Contributed by Aisling Butler and Nuala Clayton.
