Ireland: Truth-Tellers And Health And Safety: Update On New Protections For Whistleblowers

Last Updated: 25 November 2014
Article by Kevin Langford and Louise O'Byrne

Introduction

The Protected Disclosure Act 2014 (the "Act") was enacted on 8 July 2014 and came into law on 15 July 2014. The Preamble to the Act describes it as "An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes."

Protected Disclosures

What is a "protected disclosure"?

A "protected disclosure" is a disclosure of relevant information by a worker. The motivation for the making of a protected disclosure is irrelevant and there is a presumption that a disclosure is protected, until the contrary is proved.

What is "relevant information"?

  • In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings; and
  • It came to the attention of the worker in connection with the workers employment.

What is a "relevant wrongdoing"?

  • an offence has been, is being or is likely to be committed;
  • person has failed or is likely to fail to comply with any legal obligation;
  • a miscarriage of justice has occurred;
  • the health and safety of an individual is being or is likely to be endangered;
  • the environment has been or is likely to be damaged;
  • unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred or is likely to occur;
  • an act or omission of a public body is oppressive, discriminatory, grossly negligent or constitutes gross mismanagement; or
  • that information tending to show any of the above matters has been concealed or destroyed. An act is not a "relevant wrongdoing" if it is a matter which it is the function of the worker or the workers employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

To whom can a protected disclosure be made? – stepped disclosure regime

  • an employer or other responsible person;
  • to a prescribed person (S.I No 339 of 2014);
  • to the Minister (where the "worker" is or was employed by a public body and the disclosure is made to the appropriate Minister having regard for the public body);
  • made by the worker in the course of obtaining legal advice from a barrister, solicitor or trade union official; and
  • disclosure to other persons (section 10) –

    • disclosure made where the worker believes the information disclosed to be substantially true;
    • the disclosure is not made for personal gain; and
    • at the time the disclosure is made the worker believes he/she will be subject to penalisation if the disclosure is made in any other way and/or no relevant person is prescribed (as contemplated by the Act) and/or the worker has previously made the disclosure of substantially the same information in another way (as referred to above) and/or the relevant wrongdoing is of an "exceptionally" serious nature; and
    • in all of the circumstances it is reasonable for the disclosure to be made.

Who is a "worker"?

  • works under a contract of employment;
  • works under any other contract;
  • works where the individual to introduced or supplied to do work by a third person (agency); or
  • is or was provided with work experience pursuant to a training course or programme:

    • under a contract of employment; or
    • by an educational establishment on a course provided by the establishment.

Prescribed Person

  • There are 73 prescribed persons listed in the S.I. No 339 of 2014. The Chief Executive Officer of the Health and Safety Authority is a prescribed person for the purposes of the Act and can receive protected disclosures in respect of "all matters associated with legislation enforced by the Health and Safety Authority."

Protections Afforded

  • Employees who make a protected disclosure within the meaning of the Act will be protected from dismissal which arises wholly or mainly for having made the disclosure. The Unfair Dismissals Acts has been amended to provide for compensation of up to 260 weeks (5 years) remuneration. There is no service requirement to maintain this claim. Where the investigation of a relevant wrongdoing was not the sole or main motive for making the disclosure then the amount of compensation that is just and equitable may be 25% then it would otherwise be.
  • An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
  • Interim relief – order for reinstatement/reengagement pending the determination or settlement of the claim (by agreement) or an order for the continuation of the employee's contract of employment.
  • If a person causes detriment to another person because the other person or a third person makes a protected disclosure, the person to whom the detriment was caused has an action in tort against the person by whom the detriment was caused.
  • No cause of action in civil proceedings (other than a defamation action) shall lie against a person in respect of making a protected disclosure.
  • In relation to an offence prohibiting or restricting the disclosure of information, it is a defence for the person to show that at the time of the alleged offence, the disclosure was, or was reasonably believed by the person making the disclosure to be a protected disclosure.
  • Protection of the identity of the person making the disclosure unless: all reasonable steps were taken to avoid disclosing this information; the person to whom the disclosure was made reasonably believes there is no objection to the disclosure of this information;
  • the person to whom the disclosure was made reasonably believes that it was necessary to disclose this information for:

    • the effective investigation of a relevant wrongdoing;
    • the prevention of serious risk to the security of the State, public health, public safety or the environment;
    • prevention of a crime or prosecution of a criminal offence; or
    • public interest reasons or because it is required by law.

Dealing with Protected Disclosures

  • Every public body is be required to establish and maintain procedures for making protected disclosures by workers who are or were employed by a public body and for dealing with such disclosures.
  • The public body shall provide to workers employed by the body written information relating to the procedures established and maintained.
  • Every public body shall prepare and publish not later than 30 June each year a report containing the number of disclosures made, action taken in respect of such disclosures and such other information relating to the disclosures and action taken as may be requested from time to time.
  • A provision in an agreement which proposes to exclude, limit, prohibit or restrict the application of the Act is void.

http://www.arthurcox.com/publications/truth-tellers-health-safety-update-new-protections-whistleblowers/

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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