The Government recently announced the commencement of the Protected Disclosures Act 2014 (the Act). This long-awaited piece of legislation represents a new standard of international best practice for whistle-blowers in Ireland. Public sector bodies must now put in place whistleblowing policies which meet the requirements of the Act. Where private sector businesses have policies in place, they need to review them to ensure that they are aligned to the requirements of the Act and that there are no gaps leaving them with a potential exposure.
For the first time in Ireland comprehensive whistleblowing legislation will be in place across all sectors. Whilst there is existing legislation protecting whistleblowers in certain sectors, this new legislation will cover all sectors and will provide more protection than any of the previous legislation.
Below we recap on the key features of the Act and highlight what employers need to do to ensure they can meet the challenges posed by the legislation.
Who is covered?
The Act protects workers in all sectors. In accordance with international best practice, the safeguards in the Act are extended to a wide range of "workers". The concept of "worker" includes employees (public and private sector), contractors, trainees, agency staff, former employees and job seekers.
"Protected disclosure" means disclosure of relevant information, which in the reasonable belief of the worker tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.
"Relevant wrongdoings" are defined in an exhaustive list and include the following:
- the commission of an offence;
- a miscarriage of justice;
- non-compliance with a legal obligation;
- health and safety threats;
- misuse of public monies;mismanagement by a public official;
- damage to the environment; or
- concealment or destruction of information relating to any of the foregoing.
The motivation for making the disclosure is irrelevant. The UK experience showed that maintaining a requirement to make a disclosure in good faith led to significant obstacles, impeding the effective working of the regime. In its place, there is a provision allowing for the reduction of compensation payable under the Act to be reduced by up to 50% where the investigation of the relevant wrongdoing concerned was not the only or main motivation for the making of the disclosure.
A noteworthy feature of the Act is that it is retrospective in effect i.e. that a disclosure made before the date of the Act (15 July 2014) may be a protected disclosure.
Accordingly, where an employee has made a protected disclosure earlier this year or even last year, they may be entitled to protection under the legislation. It is not yet clear how far back this protection will go.
Stepped Disclosure Regime
The Act provides for a tiered disclosure regime with a number of avenues open to workers. The Act encourages the vast majority of disclosures to be made to the employer in the first instance. However, other options are available where this is inappropriate or impossible.
- Internal disclosure to an employer or other responsible person
A worker may make a protected disclosure to his employer where he/she reasonably believes that the information shows or tends to show wrongdoing or if the worker reasonably believes that the wrongdoing relates to the conduct of some person other than his/her employer, or to something for which some other person has legal responsibility, then the disclosure can be made to that person.
- Disclosure to a prescribed person
The Minister for Public Expenditure and Reform may prescribe a wide list of "prescribed persons" (e.g. a regulatory body) whose roles and responsibilities are defined by law and are, in his opinion, appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Where a worker chooses to disclose in this manner he/ she must reasonably believe the information disclosed and any allegation contained in it to be substantially true.
A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.
- Legal Advisor
A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union or an official of an excepted body is protected.
- Other disclosures
There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain (such as the media) where the standard for reporting is significantly higher. In order for this type of disclosure to be protected the worker must:-
- Reasonably believe that the information disclosed is substantially true;
- That disclosure is not made for personal gain; and
- The making of the disclosure is in all the circumstances reasonable.
In addition, one or more of the following conditions must be met:-
- at the time of making the disclosure the worker reasonably believes that he/she will be subject to penalisation and detriment by his /her employer if the disclosure is made to the employer;
- in a case where there is no prescribed person in relation to the relevant wrongdoing, the worker reasonably believes that evidence will be destroyed / concealed if a disclosure is made to the employer;
- the worker has previously made a disclosure of substantially the same nature to either his employer or prescribed person and no action was taken; and
- the relevant wrongdoing is of an exceptionally serious nature.
In determining whether this disclosure is in all the circumstances reasonable, regard shall be had to a number of factors including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether disclosure is made in breach of a duty of confidentiality.
What protections are available?
The Act provides whistleblowers with the following specific protections:-
- Protection from dismissal for having made a protected disclosure;- the worker can be awarded compensation of up to five years' remuneration for unfair dismissal on the grounds of having made a protected disclosure. This is in stark contrast to the two years' remuneration available under the existing statutory unfair dismissals regime. Also, an employee who claims to have been dismissed or threatened with dismissal for having made a protected disclosure can apply to the Circuit Court to restrain the dismissal;
- Protection from penalisation by the employer;
- Civil immunity from action for damages and a qualified privilege under defamation law;
- A right of action in tort where a whistleblower or a member of his family experiences coercion, intimidation, harassment or discrimination at the hands of a third party;
- Protection of his/her identity (subject to certain exceptions); and
- It will not be a criminal offence to make a whistleblowing report which is a protected disclosure under the Act.
Protecting the whistleblower's identity
The Act includes measures to protect the identity of whistle-blowers to ensure that any disclosures made are treated confidentially. The default position is therefore not to disclose the identity. However, there are certain exceptions to this set out in the Act.
In light of the Act, employers need to ensure that they are "whistleblowing ready". Public sector employers need to put policies in place to comply with the Act's requirements. Private sector employers need to review existing policies to ensure that they are aligned with the requirements of the legislation.
Action points for employers
As a starting point, a whistleblowing policy should address some of the following points:-
- It should set out a roadmap for employees. It should recognise that an organisation takes malpractice seriously. It should be very clear that whistleblowing concerns are distinguished from worker's grievances.
- A policy should provide examples of the types of concerns that may be raised by workers. In this regard the list should be linked to the provisions of the Act and set out the relevant wrongdoings.
- An acknowledgement that workers have the option to raise concerns outside of line management. There are different evidential burdens in the Act which an employee must reach in deciding to make a disclosure to his employer, relevant body or some other external entity.
- Workers should be able to access confidential information from an independent body.
- A policy should state that an organisation will respect the identity and confidentiality of the whistleblower and the policy should identify when and how concerns should be properly raised outside the organisation. Workers should be made aware at the commencement of their employment and on a regular basis thereafter, of the whistle-blowing policies in the organisation.
- Employers should ensure that the provisions of the policy are communicated, and that training is provided to those tasked with receiving disclosures.
- An employer should, on an on-going basis, monitor the effectiveness of the above steps and respond accordingly if changes are required.