The Government recently announced the commencement of the Protected Disclosures Act 2014. 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.
Who is covered? The Act protects workers in all sectors which means worker – in both public and private sector, contractors, trainees, agency staff, former employees and interns and members of an Garda Siochana
What does Protected Disclosure mean? Itmeans disclosure of relevant information, which in the reasonable belief of the worker, shows one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.
What should the employee do? There area 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.
1. Internal disclosure to an employer or other responsible person
2. Disclosure to a prescribed person
3. Minister (if the worker is employed in a public body)
4. Legal Advisor
5. Other disclosures such as the media but certain conditions must be met in this case.
How is the worker protected? 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.
What employers need to do!
Introduce a whistleblowing policy or review their existing policy to ensure it covers the following: –
- 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.