A Guide to Protected Disclosures
The law and strength of legal protections afforded to whistleblowers by the Protect Disclosures Legislation is not well known in Ireland. We wish it was better known so the fear whistleblowers have could be alleviated.
The Protective Disclosures Act was introduced to protect workers from retribution after notifying their employer that something is wrong, or that a ‘wrongdoing’ as defined below has taken place or is due to take place.
It is a legal protection mechanism for the whistleblower.
An employer cannot penalise an employee after making a disclosure.
An employee has legal action options open to him/her should penalisation by the employer arise after a protected disclosure is made.
Protection of the Identify of the employee who made the disclosure
This is a legal requirement.
The person who receives the protected disclosure is bound and must not disclose this to another person ie any information that could identify the maker of the protected disclosure.
What is a Protected Disclosure ?
The definition is specified in Section 5 of the Protected Disclosures Act 2014:
For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information made by a worker in the manner specified in section 6, 7, 8, 9 or 10.
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
Who discloses the information ?
The employee discloses it to the employer or other responsible person.
What is a ‘’Relevant Wrongdoing’’ ?
- an offence has been, is being or is likely to be committed;
- if an individual has not or is likely not to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- the health or safety of any individual has been, is being or is likely to be endangered.
The act that constitutes the wrong does not have to have occurred yet.
If there is uncertainty over whether the disclosure made is a protected disclosure, it will be presumed that it is.
It must firstly be established that a protected disclosure was made before it can be assessed whether penalisation occurred.
Employee Penalised – Unfairly Dismissed
If an employee after making a protected disclosure is unfairly dismissed, this is unacceptable and an employee can invoke provisions of the legislation to seek legal redress.
An employer cannot penalise an employee, cannot threaten penalisation against that employee, or cause another individual to penalise or threaten the employee as a consequence of a protected disclosure having been made.
So, there has to have been made a protected disclosure as defined above. There then has to be penalisation by the employer. There must be casual link between the employee making the disclosure and the employer then penalising the employee.
Was there a detriment suffered by the employee after he made the Protected Disclosure?
In a case that came before the the Court the following was stated in relation to regarding what the employee must prove in reference to penalisation :
“It follows that a Complainant under the Act must demonstrate
- that they made one or two protected disclosures;
- that they suffered a detriment and
- there is a causal connection between (i) and (ii)”
These are the steps to follow and what must be proved by an employee if they take a case.
What does Penalisation mean ?
Any of the following acts:
- suspension, lay-off, dismissal;
- transfer of duties, change of location, reduction in wages, changes in hours;
- being disciplined, reprimanded, getting a penalty;
- unfair treatment;
- coercion, intimation, harassment;
- discrimination, disadvantage;
- injury, damage, loss;
- threat of reprisal.
The employee must prove that any of the penalised acts done by the employer are connected to the protected disclosure made.
As this is a relatively new act there is a lack of caselaw to get a complete understanding of how this act will operate on the ground.
The legal right is there to be activated by an employee who needs it.
The 3 Burden of Proof steps to satisfy to succeed in this claim :
- There must be a protected disclosure made by the employee. This protected disclosure must include relevant information, which in the reasonable belief of the worker shows wrongdoing. There is a definition then for what can be included as a wrongdoing. This could be an offence, which has happened or not happened.
- The employer then must not penalise the employee for doing this. Forms of this penalisation vary, but could be a demotion, dismissal etc. This should be clear to see.
- The employee then has to prove there is a causal link between 1 & 2 above.
Disclaimer for Protected Disclosure Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
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