Protected Disclosures Act 2014

Protected Disclosures Act 2014 (“the Act”)

The Act provides protection to workers who make protected disclosures of certain types of information. It came into effect on 15^th July 2015. In common parlance it is to protect “whistle blowers”.

What is “a protected disclosure”?

A “protected disclosure” is a disclosure of information which in the reasonable belief of a worker tends to show a “relevant wrongdoing”. A ‘relevant wrongdoing’ is defined broadly and includes:

• Criminal offences that have been, are being or are likely to be committed;
• A failure to comply with or likelihood of failure to comply with legal obligations (other than those arising out of contract);
• A miscarriage of justice which has happened or is likely to happen;
• The health or safety of an individual is or is likely to be endangered;
• Environmental concerns;
• The unlawful or improper use of public funds;
• acts or omissions by public bodies which are oppressive, discriminatory, grossly negligent or activity constitutes gross mismanagement; and
• Concealment or destruction of evidence relating to any of the above.

Unlike the UK equivalent of this legislation, there is no requirement that a disclosure must be in the “public interest” in order for the reporter to benefit from the Act’s protections. It is irrelevant whether the wrongdoings occur within or outside of Ireland or whether the applicable law is Irish or that of any other country.

How does a worker make such a disclosure?

Whilst there is no specific procedure for making a disclosure the Act contemplates disclosures being made to:

• the employer;
• a prescribed person;
• a Minister;
• a legal advisor; or
• a third party such as the media provided certain criteria are met.

What are the protections?

Firstly, the Act amends the Unfair Dismissals Acts 1977-2007 so that a worker who is dismissed having made a protected disclosure, will be deemed to have been unfairly dismissed where that dismissal is by reason, wholly or mainly, of the disclosure having been made.

Secondly, the usual requirement of one year of continuous employment under the Unfair Dismissals Acts 1977-2007 in order to qualify for unfair dismissal on this ground is dispensed with.

Thirdly, the maximum compensation is raised from 2 years remuneration to 5 years remuneration.

Finally the Act provides for protections against penalisation. Penalisation includes: suspension, demotion, intimidation, change of duties, reprimand etc, by reason of the making of a disclosure.

As well as taking a subsequent case for unfair dismissal workers can apply to the Circuit Court for interim relief for orders such as re-engagement or re-instatement if it appears to the Court that there are substantial grounds for contending that a dismissal results wholly or mainly from the worker having made a protected disclosure.

Potential for abuse?

There is undoubtedly potential for abuse of the legislation by employees. In this light, employers may need to become ever more vigilant with ensuring compliance with their obligations (under employment law or otherwise). The Act makes it very simple for an employee to make a protected disclosure and such disclosure could relate to anything from serious breaches of data protection or environmental law to minor technical breaches of health and safety requirements.

What should you do?

Public sector employers are required by the Act to establish and maintain procedures for the making of and dealing with disclosures. Whilst this requirement to establish and maintain procedures does not yet extend to the private sector if protected disclosures become prevalent the practice may emerge for private sector employers to establish policies and procedures to be brought the attention of employees and the training of key staff in relation to dealing with disclosures. It is in this light that employers should review all of their existing policies with a view to considering incorporating specific provisions to deal with such disclosures.

Should you have any queries with regard to the Protected Disclosures Act 2014 or any employment queries please contact Shane Crossan (scr@ofx.ie) or Micheál O’Mulláin (mom@ofx.ie) by email or on the phone 021 4277788.