Protection for whistleblowers
The Protected Disclosures Act 2014 aims to protect people who raise concerns about possible wrongdoing in the workplace. The Act, which came into effect on 15 July 2014, is often called the whistleblower legislation. It provides for redress for employees who are dismissed or otherwise penalised for having reported possible wrongdoing in the workplace.
The Act’s definition of the term worker includes employees or former employees, trainees, people working under a contract for services, independent contractors, agency workers, people on work experience and the Gardaí. The legislation does not specifically name volunteers as being covered but guidelines to be developed for public bodies (see ‘Employers’ obligations’ below) will include how to treat disclosures by volunteers.
Before the 2014 Act came into effect, certain sectors, such as health, were already covered by protected disclosures legislation – see ‘Further information’ below.
Under the Act, you make a protected disclosure if you are a worker and you disclose relevant information in a particular way. Information is relevant if it came to your attention in connection with your work and you reasonably believe that it tends to show wrongdoing. This wrongdoing may be occurring or suspected to be occurring either inside or outside of the country. Even if the information is proved to be incorrect, you are still protected by the Act provided you had a reasonable belief in the information.
Wrongdoing is widely defined in the Act and includes the commission of criminal offences, failure to comply with legal obligations, endangering the health and safety of individuals, damaging the environment, miscarriage of justice, misuse of public funds, and oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body. The definition also includes the concealment or destruction of information about any of the above wrongdoing.
Any wrongdoing which it is your or your employer’s function to detect, investigate or prosecute does not come within the terms of the Act.
In general, people who receive protected disclosures or who subsequently deal with them may not disclose any information to another person which may identify the person who made the disclosure. There are some exceptions to this, for example, if identifying the whistleblower is essential to the effective investigation of the matter or is required in order to prevent crime or risks to State security, public health or the environment.
There are different ways in which you can report a concern. Different standards apply depending on the person or body to whom you disclose. The Act sets out a tiered disclosure system to ensure that most reports are made to the employer.
Disclosure to employer
The simplest form of disclosure is to your employer where all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring. If you are or were employed in a public body, you may choose, as an alternative, to report to the relevant Minister.
Disclosure to a prescribed body
You may choose to report to one of the prescribed bodies listed in SI 339/2014 as amended by SI 448/2015. In general these bodies have regulatory functions in the area which are the subject of the allegations.
A disclosure you make to a prescribed body is a protected disclosure if:
- You reasonably believe that the relevant wrongdoing is within the remit of the prescribed body and
- The information you disclose and any allegation in it are substantially true (this is a higher standard than is required for disclosure to your employer)
Disclosure to an external person
A disclosure made to an external person, for example, a journalist, may be a protected disclosure if it meets a number of conditions:
- You must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true
- The disclosure must not be made for personal gain
- At least one of these conditions must be met:
- At the time you make the disclosure you must reasonably believe that you will be penalised if you make the disclosure to the employer, a prescribed body or a Minister
- Where there is no relevant prescribed body, you reasonably believe that it is likely that the evidence will be concealed or destroyed if you make the disclosure to the employer
- You have previously made a disclosure of substantially the same information to the employer, a prescribed body or a Minister
- The wrongdoing is of an exceptionally serious nature
In all these circumstances, it is reasonable for you to make the disclosure to an external person. The assessment of what is reasonable takes account of, among other things, the identity of the person to whom the disclosure is made, the seriousness of the wrongdoing, and whether any action had been taken in cases where a previous disclosure was made.
Redress for employees
The Act provides for redress for employees who are penalised because they made a protected disclosure. You are penalised if there is any act or omission that is detrimental to you, for example, dismissal, unfair treatment or threats of reprisal.
A disclosure is assumed to be protected until the contrary is proved. Under the Protected Disclosures Act, it is the employer who has to prove that the disclosure is not protected within the meaning of the Act.
If you are dismissed from your employment because you made a protected disclosure, that dismissal is regarded as unfair. You may make a claim for unfair dismissal and if your claim succeeds, you may be awarded compensation of up to 5 years’ pay. (Generally, the maximum compensation in unfair dismissal cases is 2 years’ pay). Unfair dismissal protection does not generally apply to employees with less than 1 year service, trainees or Gardaí. These restrictions do not apply where the dismissal is because of making a protected disclosure. (The restriction on members of the Defence Forces continues to apply).
Your motivation for making a protected disclosure may affect the level of compensation you are awarded. If the investigation of the wrongdoing was not your only or main motivation for making the disclosure, then the compensation awarded to you may be up to 25% less than it would otherwise be.
Penalties other than dismissal
If you make a protected disclosure, your employer is prohibited from penalising or threatening to penalise you or causing or permitting anyone else to do so. If you are penalised or threatened, you may make a complaint to the Workplace Relations Commission – see ‘How to apply’ below.
The Act provides for immunity from civil actions for damages – in effect, you cannot be successfully sued for making a protected disclosure. You may sue a person who causes detriment to you because you made a protected disclosure. However, you may not do this and also look for redress under the unfair dismissals legislation or make a complaint to the Workplace Relations Commission. If you are charged with unlawfully disclosing information, it is a defence that you were making what you reasonably thought to be a protected disclosure.
How to apply
If you are dismissed or penalised for making a protected disclosure, you may bring a complaint to the Workplace Relations Commission using the online complaint form available on workplacerelations.ie. You should make a complaint within 6 months (or within 12 months if there is a reasonable cause).
The adjudicator's decision on your complaint may require your employer to take a specific course of action and/or may award compensation.
Appeals: You or your employer may appeal the adjudicator's decision to the Labour Court. The Labour Court may refer a question of law arising in the case to the High Court. The High Court’s decision on the matter is final. You or your employer may appeal the Labour Court’s decision on a point of law to the High Court. Again, the decision of the High Court is final.
Information on your rights and entitlements under employment legislation is provided by the Workplace Relations Commission’s Information and Customer Service.
The Transparency Legal Advice Centre (TLAC) provides free legal advice to anyone who wishes to disclose wrongdoing, particularly under the Protected Disclosures Act. Access is via the Speak Up helpline on 1800 844 866.
Public bodies such as government departments, local authorities and certain other publicly-funded bodies are obliged to establish and maintain procedures for the making of protected disclosures by workers who are or were employed by it and for dealing with such disclosures. The public bodies must provide their employees with written information relating to these procedures. They must also publish an annual report setting out the number of protected disclosures made to them and the action taken in respect of these disclosures.
There is no similar obligation on private sector employers. The Workplace Relations Commission has published the Code of Practice on Protected Disclosures Act 2014. It sets out in practical terms how a disclosure might be made and how an employer ought to handle such a disclosure.
Other whistleblower legislation
Before the Protected Disclosures Act 2014 came into effect, some sectors were already covered by protected disclosures legislation. The Health Act 2004, as amended by the Health Act 2007, provides for the protection of employees and members of the public who disclose possible wrongdoing within the health sector. The Protections for Persons Reporting Child Abuse Act 1998 provides protection from victimisation and civil liability for people reporting the abuse of children. The Charities Act 2009 provides for the protection of people who report alleged breaches of the legislation to the Charities Regulatory Authority. There are also arrangements in place in a number of other sectors. These sectoral arrangements are generally not limited to disclosures by employees but may also cover disclosures by members of the public. These sectoral arrangements remain in place but are amended in some respects by the Protected Disclosures Act 2014. The specific arrangements for the Garda Confidential Recipient have been abolished and replaced by the 2014 Act.