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The Protected Disclosures Act, 2014 (“the Act)” is designed to protect workers in all sectors of employment. The concept of “worker” includes employees (public and private sector), contractors, trainees, agency staff, former employees and interns and members of an Garda Siochana .
“Protected disclosure” means 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.
“Relevant wrongdoings” are defined in an exhaustive list and include the following:-
- 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; or
- concealment or destruction of information relating to any of the foregoing.
An important aspect of this Act features its retrospective application and therefore the disclosure of alleged offences committed prior to its enactment are also protected.
- 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 under the Act.
- 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.
A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.
- 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.
- Other Disclosures
There is also provision for disclosure in other circumstances where the standard for reporting is significantly higher. In order 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 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;
- 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.
The Act provides whistleblowers with the following specific Protections:-
- Protection from dismissal for having made a protected disclosure. The employee can be awarded compensation of up to five years’ remuneration for unfair dismissal on the grounds of having made a protected disclosure.
- Protection from penalisation by the employer;
- Civil immunity from action for damages and a qualified privilege under defamation law;
- A right of action in tort where a whistleblower or a member of his family experiences coercion, intimidation, harassment or discrimination at the hands of a third party;
- Protection of his/her identity (subject to certain exceptions); and
- It will not be a criminal offence to make a whistleblowing report which is a protected disclosure under the Act.