Whistle-blower proctection regime – key points to note for employers
The Protected Disclosures Act 2014 (the “Act”) became operational on 15 July 2014 and represents the first comprehensive legislative provision providing protection for whistle-blowers across all sectors of the Irish economy.
- The Act has been promoted as implementing international best-practice in the protection of whistle-blowers and applies to workers in all sectors. Accordingly, the Act broadly defines the term “worker” as including employees in both the public and private sector, as well as contractors, trainees, agency staff, former employees and interns.
- The Act affords a number of important protections to whistle-blowers who are penalised by their employer or suffer a detriment from a third party on account of raising concerns of possible wrongdoing in their workplace.
The Regime of Whistle-blower Proctection under the Act
Key to the regime of whistle-blower protection under the Act is the concept of a “protected disclosure.”
- A “protected disclosure” means the disclosure of relevant information, which in the reasonable belief of the worker tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.
- Furthermore, the Act provides an exhaustive list of ‘relevant wrongdoings’, including, the commission of an offence, a miscarriage of justice, non-compliance with a legal obligation, health and safety threats, the misuse of public monies/mismanagement by a public official, damage to the environment or the concealment or destruction of information relating to any of the foregoing.
- Indeed, this legislation creates a rebuttable presumption that in any employment related proceedings such a disclosure constitutes a protected disclosure, unless the contrary can be proven.
- It is important to note that the motivation for the making of such a disclosure is irrelevant, however, compensation under the Act may be reduced by up to 25% if the investigation of the relevant wrongdoing was not the only or main motivation for making the disclosure.
- Furthermore, it is irrelevant whether or not a wrongdoing is found to have actually occurred as long as a reasonable belief of such wrongdoing is found to exist. Although a worker who is found to have made a deliberate and false report will not be covered by such protections.
- The Act is retrospective in nature and thus applies to protected disclosures made prior to 15 July 2014.
- The Act provides a tiered disclosure regime with a number of different routes open to workers. The Act, however, encourages the majority of protected disclosures to be raised with their employer in the first instance, with the essential requirement that the whistle-blower reasonably believes that the information being disclosed is substantially true.
- Alternative routes of disclosure are also available to workers, including, the reporting to ‘prescribed persons’ (e.g. a recognised regulatory body), directly to the relevant Government Department, a legal advisor or even, in certain situations, into the public domain. Such routes are, however, subject to different standards, in terms of the subjective-belief, motivation and the reasonableness for such a disclosure. In some situations the worker must be able to demonstrate that, in all the circumstances of the case, it is reasonable for the worker to make the disclosure.
Specific Protections/Remedies Afforded to Workers under the Act
- The core provision of the Act is that workers are protected from dismissal for having made a protected disclosure and may be awarded compensation of up to five years’ remuneration for an unfair dismissal following the making of such a protected disclosure. This is significantly higher than the two years remuneration available under current unfair dismissal legislation. In addition, limitations relating to length of service are set aside in cases of protected disclosures.
- Indeed, all forms of penalisation by an employer are prohibited where a protected disclosure is made.
- Workers who make a protected disclosure also enjoy immunity from civil actions for damages and benefit from qualified privilege under defamation law.
- The protection of identity of the whistle-blower is critical to the Act and is only subject to limited exceptions.
- Furthermore, a right of action exists in tort for a whistle-blower who experiences coercion, intimidation, harassment, or discrimination at the hands of a third party.
- The making of a disclosure will not constitute a criminal offence in the prosecution of a person for any offence prohibiting or restricting the disclosure of information and it is in general a defence for the person to show that the disclosure is, or is reasonably believed by the person to be, a protected disclosure.
The Act introduces a number of significant protections for whistle-blowers which can have significant ramifications for employers. It is, therefore, important that employers should keep up-to-date with the regime of whistle-blower protection implemented under this legislation.
Employers should accordingly undertake a review of their employment and related personnel policies in order to ensure that they are consistent with the provisions of the Act.