The Protected Disclosures Act 2014, which provides protection for workers who are penalised by their employer or suffer a detriment from a third party on account of raising concerns about wrongdoing in the public, private and non-profit sectors, became operational on 15 July 2014.  The new legislation is overarching, offering widespread protection and covering all employees, contractors, agency workers, trainees and members of An Garda Síochána and the Defence Forces.

Protection for the worker

The Act provides for a number of statutory protections for whistleblowers, including a prohibition on penalising or dismissing workers who report wrongdoing. Compensation of up to five years’ remuneration can be awarded to an employee who succeeds in claiming that they were penalised as a result of having made a disclosure.  Interim relief may also be granted to an employee dismissed in these circumstances.    Whistleblowers will also be protected from resulting civil or criminal liability and will have a right of action in tort where a whistleblower, or a member of his or her family, suffers detriment as a result of having made a disclosure.  The protection afforded by the legislation will apply to workers who disclose relevant information that, in their “reasonable belief”, tends to show a “relevant wrongdoing.”  The absence of a “good faith” or “public interest” test in making a disclosure seeks to eliminate any barriers which could otherwise act as a deterrent to a potential whistleblower.

Wrongdoings

The Act includes a broad range of relevant wrongdoings to include criminal offences, breaches of legal obligations, threats to health and safety or the environment, miscarriages of justice, improper use of public funds and/or any attempt to conceal information in relation to such wrongdoings. The legislation encourages workers to make a disclosure to their employer in the first instance or to another disclosure recipient such as a Government Minister where the person is employed in the public sector.   The Act places an obligation on the person to whom the disclosure is made to take all reasonable steps to avoid revealing the whistleblower’s identity.  However, this obligation is not absolute and their identity may be revealed in specific circumstances.

What this means

The Act imposes duties on public bodies only to establish whistleblowing procedures and publish annual reports.  However, it would be prudent for all employers to consider putting whistleblowing policies in place as employers cannot contract out of the obligations arising from the new legislation. The Act envisages the issuing in due course of guidelines by the Minister to assist employers in meeting these obligations.

Nuala Clayton