The Protected Disclosures Act 2014 (the “Act”) was finally signed into law in mid-July, to provide a specific statutory framework for whistle-blower protection in Irish law. The Act covers both the public and private sectors and has already been recognised by the OECD as providing the highest level of protection available to whistle-blowers in the EU. Employers must now ensure that existing whistle-blower policies and more generally how they address such matters, are aligned with the requirements of the Act.
The Act broadly defines “employee” as including contractors, trainees, agency staff, interns, former employees and members of An Garda Síochána. Notably however, volunteers are excluded from the definition of “employee” under the Act.
Where an employee makes a disclosure under the Act, they will not be liable in damages for making the report unless he or she knew or was reckless that his or her opinion was false, misleading, frivolous or vexatious, or where he or she knew the information to be false or misleading. The only cause of action which an employer may take against an employee who makes a disclosure under the Act is a defamation action. In most cases, the employee will not be considered a mark for costs in such an action, leaving a potentially defamed employer with limited actual protection. Furthermore, the motivation of the employee in making the report is irrelevant. The only exception to this is where the employee takes an unfair dismissal claim under the Unfair Dismissals Act 1977, in which case the compensation award may be reduced by up to 25% if the investigation of the relevant wrongdoing concerned was not the sole or main motivation of the employee for making the disclosure.
The Act imposes a number of relatively standard restrictions to prevent employers victimising whistle-blower employees. Employers are prohibited from dismissing an employee for reporting corruption or suspected corruption. Equally, employers may face liability for damages in tort where they cause detriment to a whistle-blower for having made a report. Detriment includes coercion, intimidation, harassment, discrimination, disadvantage, adverse treatment in relation to employment or prospective employment, injury, damage, loss or threat of reprisal. Employers must be alert to these provisions as, where a claim is taken against the employer by a whistle-blower, the employer may be liable for up to five years’ gross remuneration. It also contains a provision to allow a whistle-blower to apply for a restraining order, equivalent to an injunction, to prevent a dismissal occurring where related to a protected disclosure.
Finally, the Act specifically prohibits employers and employees from contracting out of the provisions of the Act.
This article appeared as part of the Matheson Commercial Litigation round-up, issued in December 2014.