The Protected Disclosures Act, 2014 introduces some of the best workplace whistleblower protections on the planet. We answer your questions.
The Protected Disclosures Act, which came into force in July 2014, gives strong new protections to workers who expose illegal practices and other specified wrongdoings that take place at work. IMPACT warmly welcomed the new law, which was the successful culmination of a long trade union campaign. The law now provides a framework of protections for people who are victimised, or threatened with victimisation, for revealing wrongdoing. But workers have to meet the criteria set out in the Act to ensure they are protected.
The Act gives an unusually wide definition of workers, which includes employees, contractors, agency workers and people on work experience schemes. It applies to both the private sector and public service, including the Gardai. Importantly, protection kicks in from your first day of employment, unlike standard unfair dismissals protections which only apply after you’ve been in the job a year.
What wrongdoings are covered?
Again, the scope of the legislation is wide. To be protected under the Act, a worker must be disclosing one or more of the following:
- A criminal act
- Failure to comply with a legal requirement
- A threat to health and safety (including risks to the public)
- Misuse of public funds
- Oppressive or discriminatory acts or omissions by a public body
- Gross mismanagement or maladministration by a public body
- Damage to the environment
- A miscarriage of justice.
You can make a disclosure if you have a reasonable belief that one or more of these things is happening, has happened, is going to happen, or has been concealed. The wrongdoing doesn’t have to have taken place in the Republic of Ireland, nor does it have to have taken place after the legislation came into force.
How do I make a disclosure?
It’s important that whistleblowers follow the correct procedures to ensure that they enjoy the protections of the Act. The law requires public bodies to put disclosure procedures in place, which should provide clarity in the public service. Unions are also encouraging commercial, voluntary and private sector bodies to do the same, and ICTU has produced a set of guidelines for drawing up agreed workplace procedures. The Labour Relations Commission is also drawing up guidelines.
The Act sets out a stepped procedure:
- Workers who have a reasonable belief of wrongdoing can communicate this to their employer. An organisation’s disclosure procedure should include details of who workers can report to.
- Staff in state bodies can also disclose to their parent department if they are not satisfied with the response they get from their employer, or if there is a specific reason why disclosing to their employer is not appropriate.
- Staff in state bodies can also disclose to the relevant government minister if they are not satisfied with the response they get from their employer, or if there is a specific reason why disclosing to their employer is not appropriate.
- If you are not satisfied with the response, or if there is a specific reason why disclosing to your employer is not appropriate, you can disclose to an external ‘prescribed person.’ This will generally mean the regulatory body that covers your employment. Many of these have been listed in a separate statutory instrument published over the summer. Disclosures to a prescribed person require you to meet a higher burden of proof to ensure you get the protections of the Act. In short, you must reasonably believe “that the information disclosed, and any allegation contained in it, are substantially true.”
- In certain circumstances you can disclose to an external body like the media, a TD or a senator. But you have to meet significantly stronger criteria to ensure you have the protections of the Act. IMPACT members are strongly advised not to make such external disclosures unless they have sought expert advice, and have been advised that the disclosure would be protected. See below for more details.
The burden of proof over whether a disclosure is protected rests with the employer, not you.
What are the criteria for making an external disclosure?
[This answer covers disclosures other than to your employer, a prescribed person, or (for employees of state bodies) a sponsoring department or minister.]
You can disclose to an external body like the media, a TD or a senator, but you have to meet significantly stronger criteria to ensure you have the protections of the Act.
It’s not sufficient to have a “reasonable belief” of wrongdoing. Instead, you must reasonably believe “that the information disclosed, and any allegation contained in it, are substantially true.” The disclosure must be “reasonable” and cannot be for personal gain. The Act sets out criteria on what would determine whether the disclosure was “reasonable.” In addition, at least one of the following conditions must be met:
- The worker must reasonably believe they will be penalised by their employer if they make a disclosure internally or to a prescribed person.
- No prescribed person has been prescribed and the worker reasonably believes that evidence of the wrongdoing will be concealed or destroyed if they make an internal disclosure.
- They have previously made a disclosure of the same information to their employer, a prescribed person or a minister.
- The wrongdoing is of an “exceptionally serious nature.”
IMPACT members are strongly advised not to make such external disclosures unless they have sought expert advice, and have been advised that the disclosure would be protected.
Must I be certain that wrongdoing has taken place?
If you disclose to your employer – or a sponsoring department or minister if you work in a public body – you only need to have a ‘reasonable belief’ that wrongdoing is, has, or will be taking place. To put it another way, you have a right to be wrong.
If you disclose externally – including to a prescribed person – you have to meet stronger criteria. Specifically, you must reasonably believe “that the information disclosed, and any allegation contained in it, are substantially true.”
If you disclose to an external body other than a prescribed person, stronger criteria over other aspects of the disclosure also have to be met (see above) and you are strongly advised not to make such external disclosures unless you have sought expert advice, and have been advised that the disclosure would be protected.
Untrue allegations made maliciously are likely to get you in serious trouble.
How can I get advice before making a disclosure?
You can divulge the information to a trade union official, solicitor or barrister to seek advice on whether your disclosure would be protected under the Act and, if so, how to proceed with a disclosure. Obviously, this is likely to incur a cost if you choose to go to a solicitor or barrister.
What protections does the legislation give?
Provided you meet the criteria of a protected disclosure, the law gives you:
- Protection from any penalisation from your employer for having disclosed. Among other things this includes protection against suspension, lay-off, dismissal, demotion, loss of opportunity for promotion, transfer of duties, changes of work location, reduction of wages, changes to working hours, unfair treatment, harassment and the threat of reprisals.
- Immunity from civil liability in respect of the disclosure. In other words, you can’t be sued for defamation.
- Protection from victimisation from a third party (eg, a prospective employer who refuses to hire you because you previously made a protected disclosure. Among other things, this is a protection against ‘blacklisting’).
- Protection from criminal proceedings in certain circumstances.
The law also prohibits your employer from victimising others (eg, your sister who also works for the same employer) on foot of a protected disclosure.
What if my employer sacks me?
For the first time ever in Irish employment law – and at the insistence of IMPACT and other unions during the consultations that preceded the legislation – you will be able to apply to the circuit court for an injunction, seeking reinstatement, after 21 days of the dismissal.
If the injunction is granted, your employer would then either have to reinstate you or pay you while any legal case was underway. The employer would then have to prove that your disclosure was not protected under the Act. If they failed, your dismissal would be deemed unfair.
The maximum penalty for unfair dismissal in protected disclosure cases has been set at five years pay – substantially more than the usual two years – although this can be reduced by up to 25% if “the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure.” This is the only time that the legislation deems your motive for making a disclosure relevant.
The unfair dismissals protections are in place from the day you start work. Significantly, there is no qualifying period for an unfair dismissals claim under this legislation.
Will my identity be revealed?
The person you disclose to, and any manager they have to refer the disclosure to, mustn’t disclose information that would reveal that you’re the person who made the disclosure. You can sue if you suffer as a result of a failure to meet this requirement.
What about existing legal obligations to disclose wrongdoing?
All existing laws that include professional or other obligations to report wrongdoing or suspicion of wrongdoing (eg, child protection laws or the Criminal Justice Act, 2011) remain in place.