New Whistleblowing Legislation in Force

25-09-2014

Author: Gregory Glynn and Jillian Conefrey



New Whistleblowing Legislation

The Protected Disclosures Act 2014 (“the Act”), commonly known as ‘the Whistleblowers Act’, was signed into law on 8 July 2014 and came into operation on 15 July 2014. The aim of the Act is to protect workers in both the public and private sectors against reprisal in circumstances where they disclose information relating to wrongdoing which comes to their attention in the workplace. It seeks to make whistleblowing a key element of corporate risk management and to foster a culture, in both the public and private sectors, which supports whistleblowing.

Elements of the New Regime

The Act protects workers who make a disclosure of relevant information through one of the specified disclosure channels. A disclosure made in this way is referred to as a “protected disclosure”.

Relevant Information

“Relevant information” is information which the worker reasonably believes tends to show one or more “relevant wrongdoings” and which came to his attention through his employment.

The Act sets out an exhaustive definition of “relevant wrongdoings”, which includes:

  • the commission of a criminal offence;
  • the failure to comply with a legal obligation;
  • the occurrence of a miscarriage of justice;
  • the endangerment of the health or safety of an individual;
  • damage to the environment;
  • the unlawful or improper use of public funds/monies;
  • maladministration/gross mismanagement by a public official; and
  • the concealment or destruction of information tending to show any of the above.

The motivation for making the disclosure is irrelevant to the question of whether the disclosure is a protected disclosure. However, where an employee is unfairly dismissed for having made a protected disclosure, the amount of compensation payable may be reduced by up to 25% if it is shown that the investigation of the relevant wrongdoing was not the employee’s sole or main motivation in making the disclosure.

Workers

The protections offered by the Act extend to “workers”, a broader concept than “employees”. The term “worker” includes employees or former employees, independent contractors, trainees, agency staff, persons on work experience and volunteers.

The Disclosure Channels

The Act provides for a “stepped” disclosure regime, though it does not explicitly rank the different channels or require a worker to use one channel before using another (save in the case of wider public disclosure). However, the clear intention is to favour internal disclosure where the employer has an effective risk management culture which accepts the need for and the value of whistleblowing.

Briefly the disclosure channels are as follows:

  • Disclosure to an employer or other responsible person – A worker may make a disclosure to a “responsible person” where he reasonably believes that the relevant wrongdoing relates solely or mainly (i) to the conduct of a person other than his employer; and (ii) to something for which the responsible person in question has legal responsibility.
  • Disclosure to a prescribed person – The Minister for Public Expenditure and Reform has designated 72 people as “prescribed persons” for the purposes of the Act. Such persons include the Director of Internal Audit in the Office of the Revenue Commissioners; the Registrar of Companies; the Chairperson of the Competition Authority; the Data Protection Commissioner; the Director of Corporate Enforcement; and members of the Garda Síochána Ombudsman Commission. Where a worker makes a disclosure to a prescribed person, in order to be protected under the Act, he must reasonably believe that the information disclosed and the allegations made are substantially true.
  • Disclosure to a Minister – A worker employed in a public body may make a disclosure to the relevant Minister, rather than his actual employer.
  • Disclosure to a legal adviser – A worker may make a disclosure in the course of obtaining legal advice from a barrister, solicitor, trade union official or an official of an excepted body within the meaning of the Trade Union Act 1941 (i.e. a body which can lawfully negotiate wages or other conditions of employment without holding a negotiation licence).
  • Disclosure in other cases – A worker may also make a disclosure through other channels, which could potentially include the media. However, the Act will only protect the worker in such cases where (a) he reasonably believed that the information disclosed and the allegations made were substantially true; (b) he did not make the disclosure for personal gain; and (c) it was reasonable for him to make the disclosure.

In determining “reasonableness”, a Court will consider a number of factors including the identity of the person to whom the disclosure was made; the seriousness of the relevant wrongdoing; and whether the relevant wrongdoing was continuing or was likely to occur in the future.

In addition to (a), (b) and (c) above, one of the following conditions must also be met:

  • at the time the worker made the disclosure, he reasonably believed that if he had disclosed the information directly to his employer/responsible person, a prescribed person or the relevant Minister, he would have been penalised;
  • no relevant person was prescribed for the purposes of the Act and the worker reasonably believed that if he made the disclosure to his employer/responsible person or to the relevant Minister, it was likely that evidence relating to the relevant wrongdoing would be concealed or destroyed;
  • the worker had previously made a disclosure of substantially the same information to his employer/responsible person, a prescribed person or to the relevant Minister and the relevant wrongdoing is of an exceptionally serious nature.

Protections for the Worker

The Act offers the following protections for workers who make protected disclosures:

  • Protection from dismissal – An employee who is dismissed as a result of having made a protected disclosure may claim up to 5 years’ remuneration from his employer under the Unfair Dismissals Act 1977. An application may also be made to the Circuit Court for relief pending the determination or settlement of an unfair dismissals claim, which may include re-engagement of the employee.
  • Protection from penalisation – An employee who is penalised by his employer for having made a protected disclosure may bring a complaint to the Rights Commissioner. If the complaint is upheld, the employer may be required to pay compensation of up to 5 years’ remuneration. “Penalisation” means any act or omission that affects a worker to his detriment, and includes suspension, dismissal, demotion, unfair treatment, discrimination, harassment or the threat of reprisal.
  • Immunity from civil liability – No civil proceedings (save for defamation) may be taken against a person for having made a protected disclosure. In defamation cases, a protected disclosure will attract qualified privilege.
  • Tortious liability for victimisation – A person who suffers detriment at the hands of another person for having made a protected disclosure may take civil proceedings against that person. “Detriment” in this sense includes (a) coercion, intimidation or harassment; (b) discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment); (c) injury, damage or loss; or (d) the threat of reprisal.
  • Defence in criminal prosecution – In a prosecution for an offence prohibiting or restricting the disclosure of information, it is a defence to show that the disclosure was reasonably believed to be a protected disclosure.
  • Protection of identity – The Act prohibits (subject to certain exceptions) a person to whom a protected disclosure was made from disclosing any information that might identify the person who made the disclosure.
  • Presumption that a disclosure is a protected disclosure – It is presumed, unless and until proven otherwise, that a disclosure is a protected disclosure within the meaning of the Act.

Retrospective Application & Mandatory Nature 

A noteworthy feature of the Act is that it has retrospective effect so that a disclosure made before the passing of the Act may be a protected disclosure and the worker who made the disclosure may be entitled to protection under the Act. 

It is not possible to contract out of the provisions of the Act and any agreement which attempts to do so will be void.

Practical Implications for Businesses

Every public body is now required to establish and maintain procedures for the making of protected disclosures and for dealing with such disclosures. While there is no equivalent obligation on private sector employers, in order to minimise the risk of litigation, such employers should now take steps to put a comprehensive whistleblowing policy in place or to review existing policies to ensure they are aligned with the Act.

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