Protected Disclosures Act 2014

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Created: Wednesday, June 07 2017 14:20

We are shortly approaching the second anniversary of the Protected Disclosures Act 2014, which has now been in on our statute books since 15 July 2014.  The Act has been the subject of much media attention, not least because of scandals that have arisen in some of the country’s most revered organisations, most notably An Garda Síochána.

Protected Disclosures Act 2014 - Whistleblower Protection

Shane MacSweeney, Partner

Introduction

We are shortly approaching the second anniversary of the Protected Disclosures Act 2014, which has now been in on our statute books since 15 July 2014.  The Act has been the subject of much media attention, not least because of scandals that have arisen in some of the country’s most revered organisations, most notably An Garda Síochána.

The Act is intended to reflect and implement international best practice for whistle-blowers in this country.

In this article, we take the opportunity to consider what protections are available and for whom, in what is a complex and evolving area of law.

Who is protected?

The Act protects workers in all sectors and is extended to a wide range of "workers". The concept of "worker" includes workers (public and private sector), contractors, trainees, agency staff, former employees and interns and members of An Garda Síochana.

What is a Protected Disclosure?

"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 his/her 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; and/or
• concealment or destruction of information relating to any of the foregoing.

The worker’s motivation in making the disclosure is not relevant, albeit maliciously made disclosures can affect the recoverable compensation, under the Act.

Retrospectivity

The Act has retrospective effect meaning that a disclosure made before the date of the Act (15 July 2014) may be a protected disclosure.

Stepped Disclosure Regime

The Act provides for a stepped disclosure regime with multiple avenues open to workers. The Act encourages the vast majority of disclosures to be made to the employer, in the first instance. However, other options are available, where this is inappropriate.

A. 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.

B. 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. Where a worker chooses to disclose in this manner he/she must reasonably believe the information disclosed and any allegation contained in it to be substantially true.

C. Minister

A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to his/her employer.

D. Lawyers/Legal Advisors

A disclosure made in the course of obtaining legal advice from a solicitor, barrister, trade union (and certain other advisers) is protected.

E. Other disclosures

There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain (such as the media) where the standard for reporting is significantly higher.

In order for a disclosure to the media 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.

In determining whether this disclosure is in all the circumstances reasonable, regard shall be had to a number of factors including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether the disclosure is made in breach of a duty of confidentiality.

What protections are available?

The Act provides whistleblowers with the following specific protections:

• The key relief is protection from dismissal for having made a protected disclosure.  A whistleblower can be awarded compensation of up to five years' remuneration for unfair dismissal (far exceeding the two years' remuneration normally available under existing unfair dismissals legislation), on the grounds of having made a protected disclosure.
• A whistleblower who claims to have been dismissed or threatened with dismissal for having made a protected disclosure can apply to the Circuit Court to restrain the dismissal;
• Protection from penalisation by the employer;
• Civil immunity from action for damages;
• 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
• Whistleblowing which constitutes a protected disclosure under the Act, will not constitute a criminal offence ke.

Confidentiality

The Act includes measures to protect the identity of whistle-blowers to ensure that any disclosures made are treated confidentially. The default position is that the identity of the whistleblower is not disclosed, albeit this is subject to certain exceptions.

Conclusion

The Act has already been the subject of a number of high profile decisions and more than ever, employers need to ensure that they are "whistleblower ready".

Public sector employers have by now put policies in place to comply with the Act's requirements. However, private sector employers have failed to do so in many instances and urgently need to review existing policies, to ensure that they are aligned with the requirements of this wide reaching and game changing legislation.

Essential Elements of a Whistle-blowing Policy

At a minimum, a well drafted whistle-blowing policy should address the following:

• It should recognise that an organisation takes malpractice seriously.
• It should clearly differentiate between whistleblowing concerns and worker's grievances.
• It must contain a clear process for workers to follow, in terms of reporting and escalating relevant concerns, including an acknowledgement that workers may raise concerns outside of their direct line management in certain instances.
• A policy should provide examples of the types of concerns that may be raised by workers (following the provisions contained in the legislation, where possible).
• It should note the varying evidential burdens in the Act which a worker must reach in deciding to make a disclosure to his employer, relevant body or another external entity.
• Workers should be able to access confidential information from an independent body.
• A policy should confirm that the employer will respect the identity and confidentiality of the whistleblower and the policy should identify when and how concerns should be properly raised outside of the organisation.
• Workers should be made aware at the commencement of their employment of the whistle-blowing policiy in the organisation.
• Existing workers should be informed of and/or trained on the employer’s whistle-blowing policy.
• Persons tasked with receiving disclosures will need to be appropriately trained.
• As always, employers will need to review their policies to ensure that they are current, relevant and effective.