On 15 July 2014, the Protected Disclosures Act 2014 (the “Act”) came into effect. This all-encompassing legislation seeks to provide comprehensive protection for workers who report wrongdoing. Below, we summarise the key features of the Act, highlighting how it affects schools and the steps schools must take to comply with it.
The Act protects workers in all sectors. ‘Worker’ is very broadly defined and includes all employees both public and private, including those who fall outside the traditional employer/employee relationship, for example contractors, consultants, agency staff, former employees, temporary employees and interns/trainees. This broad definition will cover virtually all those who are engaged to do work in schools and potentially covers volunteers who are engaged in certain types of work experience.
Schools are specifically provided for in the legislation, the Act states that an “educational establishment” means any university, college, school or other educational establishment. A worker’s disclosure is protected when it relates to a ‘relevant wrongdoing’ which includes: criminal offences; failure to comply with legal obligations (this does not include disclosures of breaches relating to the worker’s own terms of employment); miscarriages of justice; health and safety matters; environmental damage; unlawful or improper use of public money; an act or omission by a public body that is oppressive, discriminatory, grossly negligent or constitutes gross mismanagement; and where information in relation to any of the above is concealed or destroyed.
A ‘stepped’ disclosure regime in the Act encourages workers to make disclosures internally first to either their employer or other responsible person. This is the least onerous channel for workers as they merely have to have a ‘reasonable belief’ that they are disclosing a relevant wrongdoing which they discovered through work. This is obviously the preferable route for disclosure from a school’s perspective as it enables a Board of Management to address the concerns while avoiding negative publicity.
Disclosure to prescribed persons
The Minister for Public Expenditure and Reform can also prescribe particular persons to be recipients of disclosures in respect of certain matters. The Secretary General of the Department of Education and Skills is the prescribed person for disclosures in relation to matters relating to the operation and development of the education system in the State and the functions of the Inspectorate; the Chief Executive of the Higher Education Authority is the prescribed person for disclosures in relation to higher education matters and the Director of the Teaching Council is the prescribed person for disclosures in relation to regulation of the teaching profession and teaching standards. Disclosure of such information requires a reasonable belief that the information is substantially true.
Disclosure to the Minister
Workers in schools can also make disclosures to the Minister for Education and Skills.
Disclosure to legal adviser
Workers are also protected when they make disclosures in the course of obtaining legal advice, including from a trade union. This can include where the worker has questions relating to the operation of the legislation. Such protection applies regardless of the employer’s view of the trade union.
Disclosures in other cases
In order for disclosures to other external parties to be protected, for example, disclosures to the media, the worker must be able to show that:
- s/he reasonably believed the information to be substantially true
- the disclosure is not made for personal gain
- s/he reasonably believes s/he would be penalised if a disclosure was made, or that evidence would be concealed or destroyed, or previous disclosures were made or the wrongdoing is of an exceptionally serious nature
- it is reasonable for the disclosure to be made.
There are comprehensive protections for workers who make disclosures in accordance with the Act:
- The Act provides workers who make disclosures with protection from penalisation, which includes suspension, dismissal, demotion, and unfair treatment. An employer is held vicariously liable if it causes or allows another person to penalise or to threaten penalisation against an employee for having made a protected disclosure.
- In a case for unfair dismissal, compensation of up to a maximum of five years’ gross remuneration may be awarded to an employee who was dismissed for having made a protected disclosure. There is also no qualifying length of service and dismissal for this reason is deemed ‘automatically unfair’. However, if investigation of the wrongdoing was not the sole reason for making the disclosure, any award may be reduced by 25%.
- Workers under the Act who are dismissed for having made protected disclosures also have the option of applying for interim relief before the Circuit Court. If the employer and employee agree, the Court may order that the employee is re-instated or re-engaged in another position on no less favourable terms and conditions.
- Workers and third parties also have a cause of action in tort against a person who causes detriment to them because they, or another person has made a protected disclosure.
- There is civil and criminal immunity for employees who make disclosures, including a defence of qualified privilege under the Defamation Act, 2009.
- The identity of the person who disclosed the information shall be protected and all reasonable steps must be taken to avoid disclosing the person’s identity.
- While the Act offers extensive protection to workers, schools can take comfort from the fact that false disclosures which are made deliberately are not protected by the Act.
Steps towards compliance
Under the Act, all public bodies must establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures. Workers will then be provided with written information on these procedures. Schools come under the definition of public body. The Minister for Public Expenditure and Reform may issue guidance to assist public bodies in making a whistleblowing policy, which the public body must have regard to.
As these guidelines have yet to be issued, in the meantime it is advisable that schools introduce a provisional whistleblowing policy. All workers should be aware that the school takes malpractice seriously. While internal reporting should be encouraged, workers should also be made aware of their entitlement to make disclosures outside of the organisation. Schools should clearly communicate this provisional policy and inform workers that they will respect the confidentiality of the whistleblower. Schools should thoroughly investigate concerns raised by a worker and keep him or her informed of the progress of the investigation where possible. They should also review the policy and take appropriate action based on any concerns.
Workers are also entitled to rely on this legislation in any employment disputes. Considering the very high levels of compensation which can be awarded, whistleblowing claims may arise in the context of other employment disputes. If a whistleblower is to be the subject of disciplinary action/dismissal for another reason, schools should proceed very cautiously and should seek advice. They should ensure that there is sufficient evidence against the individual and that any investigation and subsequent outcome complies with fair procedures.
Schools cannot rely on clauses in employment contracts which prevent the worker from making disclosures. These clauses are unenforceable under the Act. Schools should also be aware that all existing laws that include professional or other obligations to report wrongdoing or suspicion of wrongdoing (eg, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act, 2012) remain in place.