Protected Disclosures Act 2014 one year on.

The Protected Disclosures Act 2014 was enacted one year ago on the 15^th July 2014.

The Act specifies that it provides protection to “workers”. This term covers employees both public and private, contractors, trainees, interns, agency staff, former employees, members of an Garda Síochána, members of the Defence Forces and even job seekers.

A “protected disclosure” is a disclosure of information which, in the reasonable belief of the worker, tends to show one or more “relevant wrongdoings”. This information must have come to the attention of the worker in connection with their employment.

The motivation of the employee in making the disclosure is irrelevant – there is no requirement that the disclosure be made in good faith. However, where the investigation of the relevant wrongdoing was not the only or main reason for making the disclosure, compensation payable under the Act may be reduced by up to 25%.

Making a Disclosure

Whether a disclosure is protected or not will depend upon the way in which the disclosure is made. The Act provides for five channels of disclosure:-

1. To an employer or other responsible person. The Act encourages employees to make disclosures to their employer in the first instance to allow the employer to take action and deal with the subject matter of the disclosures to prevent or limit further damage. When making a disclosure to their employer, a worker must show that, in their reasonable belief, the information disclosed tends to show wrongdoing. A worker is not expressly obliged to disclose to his or her employer before availing of the other channels available to them under the Act.
2. Disclosure to a prescribed person. The Minister for Public Expenditure and Reform has prescribed a list of persons that may accept a disclosure from a worker. Some examples of these prescribed persons are the Director of Internal Audit in the Revenue Commissioners; the Registrar of Companies and members of the Garda Síochána Ombudsman Commission. The requirement that a worker must reasonably believe the information disclosed is still in place and, in addition, any allegation made to a prescribed person must be “substantially true”.
3. Disclosure to a Minister. This mostly applies to public sector workers rather than private or non-profit sector workers. A worker in a public body may make a disclosure to the relevant Minister rather than to their immediate employer.
4. Disclosure to a Legal Advisor. A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union official or an official of an excepted body is a protected disclosure.
5. Disclosure to a third party or other cases. This mostly deals with disclosures with the potential to filter through to the public domain, such as disclosures to the media. The standard for reporting is significantly higher here than in the other channels. For this type of disclosure to be protected, the worker must:

• Reasonably believe that the information disclosed is substantially true;
• That disclosure is not made for personal gain; and
• The making of the disclosure is in all the circumstances reasonable.

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

• 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;
• In the case where there is no prescribed person in relation to the relevant wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if a disclosure is made to an employer;
• 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
• The relevant wrongdoing is of an exceptionally serious nature.

In determining whether the disclosure is reasonable under requirement (c), regard shall be had to a number of factors. These factors include the seriousness of the relevant wrongdoing, whether the wrongdoing is ongoing, and the identity of the person to whom the information is disclosed and whether the disclosure is made in breach of a duty of confidentiality. Any worker making a disclosure in this channel needs to be very careful and should seek legal advice before making such a disclosure.

Protections for Whistleblowers

• The Act provides whistleblowers with the following protections:-
• Protection from dismissal for having made a protected disclosure.
• Protection from Penalisation by the employer
• Civil Immunity from actions for damages
• Qualified Privilege under defamation law.
• A Right of action in Tort where a whistleblower or a member of their family experiences coercion, intimidation, harassment or discrimination and the hand of a third party.
• It will not be a criminal offence to make a whistleblowing report which is a protected disclosure; and
• Protection of his or her identity, subject to certain exceptions. Disclosure of a whistleblower’s identity may be necessary for:
• The effective investigation of the relevant wrongdoing;
• The prevention of serious risk to the security of the State, public health, public safety or the environment;
• The prevention of crime or prosecution of a criminal offence; or
• The disclosure is otherwise necessary in the public interest or is required by law.

If the person to whom a disclosure was made discloses the whistleblower’s identity, the whistleblower may be able to claim against that person if the whistleblower suffers loss as a result of their identity being made known.

Points to note:

An employee can be awarded compensation of for up to five years’ remuneration for unfair dismissal on the grounds of having made a protected disclosure. In contrast, the maximum level of compensation awardable in other unfair dismissals cases is two years’ remuneration

Employers should put in place a whistleblowing policy or, where one already exists, ensure that it complies with the new Act. If there is an effective internal procedure which covers how whistleblowing should take place, it minimises the potential of an employee making a disclosure outside the organisation. In cases of disclosure to third parties such as the media, regard will be had by the court as to whether the worker complied with an employer’s procedure when considering if the disclosure was reasonable. Any whistleblowing policy should address some of the following points:

• Set out that the organisation takes malpractice seriously.
• Set out clearly that whistleblowing concerns are different from workplace grievances and provide examples of the types of concerns that come under the definition of “relevant wrongdoing”.
• Set out the internal procedure for making relevant disclosure by identifying who a worker should make a disclosure to within the organisation, the steps they need to take, and so on.
• Acknowledge that a worker has the option to raise their concerns outside of line management.
• State clearly that there are different evidential burdens under the Act which must be reached by an employee making a disclosure to his/her employer or another body specified under the Act;
• During the investigation of a relevant wrongdoing, it may be necessary to disclose to the accused the identity of the whistleblower. The policy should make clear the circumstances in which their identity may be disclosed.
• Employers should ensure that their workers are notified of the provisions of the policy and that training is provided to those tasked with receiving disclosures.

Employers should regularly monitor the effectiveness of the above steps and respond appropriately if changes are required