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05.02.2019

Whistleblowing: how does the Protected Disclosures Act 2014 work?

Whistleblowing: how does the Protected Disclosures Act 2014 work?

The Protected Disclosures Act 2014 (the Act) aims to protect workers (both employees and non-employees such as trainees, agents, consultants for instance) against negative treatment arising from the disclosure of information that sheds light on acts of wrongdoing in the workplace.

Why do we need whistleblowing legislation?

Whistleblowing laws are necessary to provide protection to workers who make disclosures of wrongdoing or raise concerns about matters of public interest that come to their attention through their employment.

 

Whistleblowing laws are also necessary to ensure that whistleblowers are not penalised by their employer for making a disclosure. Under whistleblowing legislation, employers are prohibited from carrying out any act or omission that affects a worker to their detriment including sanctions such as suspension, lay off or demotion.

Workers not just employees are protected

The Act protects “workers” in all sectors. The term “worker” is broadly defined and includes employees (public and private), contractors, consultants, agency staff, former employees, temporary employees and interns/trainees. The identity of a worker making a disclosure may also be protected under the Act.

What is relevant information?

“Relevant information” which attracts the protection afforded by the Act is defined as information that:

 

  1. in the reasonable belief of the worker, tends to show one or more relevant wrongdoings,

 

and

 

  1. comes to the attention of the worker in connection with the worker’s employment.

What is a relevant wrongdoing?

Workers who make a disclosure in relation to any of the following “relevant wrongdoings” will enjoy the protection of the Act:

  1. that an offence has been, is being or is likely to be committed
  2. that a person has failed, is failing or likely to fail to comply with any legal obligation, other than one rising under the worker’s contract of employment
  3. that a miscarriage of justice has occurred, is occurring or is likely to occur
  4. that the health or safety of any individual has been, is being or is likely to be endangered
  5. that the environment has been, is being or is likely to be damaged
  6. that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur
  7. that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent, or
  8. that information in respect of issues in the above has been, is being or is likely to be concealed or destroyed.

Importantly, the Act at (b) above explicitly excludes breaches of an employee’s contract. Employees do not enjoy the protection of the whistleblowing legislation if they are reporting on breaches relating to breaches of a contract of employment.

Blowing the whistle

The Act makes it clear that the worker must make disclosures in a specific manner. Disclosures ought to be made in the following order:

  1. to the employer or other responsible person
  2. to a prescribed person (for instance an industry regulator or ombudsman)
  3. to a government Minister where the worker works in a public body
  4. to a legal adviser.

There are exceptions to the lowest possible level rule. Workers may seek to make a disclosure to other persons/bodies where:

 

  1. they have previously made a similar disclosure to one of the bodies outlined above
  2. they reasonably believe they may be penalised by their employer for making the disclosure
  3. they reasonably believe that it is likely that evidence of the wrongdoing will be concealed or destroyed
  4. the wrongdoing is of an exceptionally serious nature.

 

The Act was amended in June 2018 under an EU directive which created a new test for whistleblowers permitting them to make any disclosure which is in the general public interest.

What is penalisation?

The Act does not provide an exhaustive definition of “penalisation” but does include the following:

 

  • suspension, lay-off or dismissal
  • demotion or loss of opportunity for promotion
  • transfer of duties, change of location of place of work
  • reduction in wages or change in working hours
  • the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty)
  • unfair treatment
  • coercion, intimidation or harassment
  • discrimination, disadvantage or unfair treatment
  • injury, damage or loss, and
  • threat of reprisal.

Protect your business

Employees and workers enjoy strong protections under whistleblowing legislation. Putting a whistleblowing policy in place will protect your business. For more information, call us today on +353 1 886 0350.

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