A protected disclosure is whistleblower protection for an employee, granted under the Protected Disclosures Act 2014. It arises where an employee uncovers wrongdoing by the employer, and protects the employee from reprisals. The effect of the legislation to encourage employees to speak up when they become aware of wrongdoing.
An employer must generally grant anonymity to the employee together with protection from penalisation including by way of dismissal, suspension, demotion, reduction of wages, transfer of duties, harassment, intimidation, discrimination or threats of reprisals. The employer must also investigate the alleged wrongdoing, and take corrective measures where appropriate. The employee is immune from civil actions arising from their disclosure.
A protected disclosure must be distinguished from a grievance as the protections arise where there is an act or omission on the part of the employer that is potentially illegal or wrongful. The information must have come to the employee in the course of their employment. It must be sufficiently detailed and concern:
- Criminal offences
- Legal compliance
- Risks to the health and safety of any individual
- Environmental damage
- Miscarriages of justice
- Misuse of public funds
- Oppressive, discriminatory, or grossly negligent conduct of a public body
- Concealment of wrongdoing
The employee must make the disclosure in good faith, believing it to be true. The employee will not be protected if he or she has made a disclosure maliciously or falsely.
A disclosure will be protected if it is made to:
- The employer with a reasonable belief
- A prescribed body (such as the ODCE or the Health and Safety Authority) with a substantially true allegation
- An external person, such as a journalist with a reasonable belief of substantive truth, and there is a likelihood of destruction of evidence, and where the exceptional wrongdoing has substantially been disclosed to the employer, a Minister or a prescribed person. The whistleblower will not be protected if he or she makes a personal gain from the disclosure.
One can make a protected disclosure without specifically invoking the act, so employers must proceed with caution when a wrongful or illegal act or omission is brought to their attention by any means.
After a disclosure of wrongdoing is made, an employer must exercise caution in relation to their treatment of the disclosing employee. An employee can be awarded up to five years remuneration in damages for dismissal or penalisation for making a protected disclosure.
Unlike a usual claim for unfair dismissal, there is no service requirement so a recent hire can claim remedies for penalisation or dismissal.
It happens that protected disclosures can arise where the employer/employee relationship is already strained, and in such scenario the employer must exercise particular caution. Recently, the High Court held that negative inferences as to the bona fides of a performance issue (given as the reason for dismissal following a disclosure) could be made as a result of:
- Performance only becoming an issue after the disclosure was made
- Increased or relentless assessment of performance
- Whether the correct disciplinary procedure and fair procedures were followed in respect of performance shortcomings.
For this reason employers should ensure that they have an appropriate Protected Disclosure Policy or Whistleblowers Charter, a clear grievance procedure, a disciplinary policy and a strong performance management structure and practice.
We would be happy to work with your business to develop a set of policies that will ensure the smooth functioning of your workplace. Please call us on 01- 6763257 if you would like to discuss options for your business.
By Lisa Quinn O’Flaherty
Solicitor at Fitzsimons Redmond