WHISTLEBLOWER – PROTECTED DISCLOSURE – PROTECTION FOR WORKERS
There are a number of specific protections in place for workers who have made ‘whistleblowing’ reports or what are now called protected disclosures, to their employer or a nominated person. The Protected Disclosures Act 2014 (“the Act”) was signed into law on the 8th July 2014 and it provides a number of safeguards to a variety of workers (employees, contractors trainees and agency workers) so they do not suffer penalisation or targeting by their employers.
What is a Protected Disclosure?
A protected disclosure is a disclosure made by an employee/worker in relation to a ‘relevant wrongdoing’, which came to the attention of the employee/worker in connection with their employment.
The ‘Act’ sets out a list of ‘relevant wrongdoings’ which include criminal wrongdoing, financial wrongdoing, a failure to comply with a legal obligation, gross negligence by a public official or damage to the environment. The disclosure must contain actual ‘information’ on wrongdoing and not just allegations for it to be deemed a protected disclosure. The information must also have come to them in connection with their employment.
What Protection is in place?
The Act provides that an employee/worker cannot be penalised for making a disclosure. Any employee/worker who is penalised or dismissed by their employer for making a protected disclosure can bring a claim against their employer to the Workplace Relations Commission (“WRC”). Unlike a claim for unfair dismissal (where an employee must have at least 1 years’ service before he/she may bring a claim), there is no minimum service requirement. If the employee is successful, they can be awarded up to 5 years’ remuneration. This is a much higher sum that is permitted to other unfair dismissal claims which have a maximum compensation ceiling of 2 years salary.
It may also be open to an employee who believes he/she was dismissed because they made a protected disclosure to bring an application to the Circuit Court within 21 days of the dismissal seeking orders that their contract of employment be continued until their claim is heard before the WRC. If successful an employer may be required to pay the employee’s salary up until the finalisation of the claim.
The Act also provides a protection to the worker making a protected disclosure from defamation claims and possibly from civil and criminal liability. This is limited however to circumstances where a whistleblower can show they reasonably believed they were making a protected disclosure, that they have information and not ‘allegations’ and that this information came to them in connection with their employment.
What is defined as “Penalisation” ?
The 2014 Act provides a very broad definition of what is deemed ‘penalisation’. It can include dismissal, disciplinary proceedings, suspension, a unilateral change in working hours or a demotion.
The WRC have addressed this issue in a number of decisions which have been published on their website.
Following a number of decisions it is clear that a ‘but for’ test has emerged. This means an employee/worker must be able to show that “but for” the protected disclosure, he/she would not have been penalised in the manner alleged.
One of the first decisions and awards in favour of an employee arising directly from the 2014 Act was given in the case of Monaghan v Aras Chois Fharriage, a decision of the Labour Court in 2016.
A nursing home employee complained about health and safety issues at work. The employer treated the complaints as internal grievances and not protected disclosures. The grievance procedure of the Nursing home was invoked and the employee was suspended. The employee brought a claim under the Act alleging that she had been penalised for making the disclosure.
The Labour Court found in favour of the employee and held that her complaints were protected disclosures. The Court was satisfied that the employee had satisfied the “but for” test as but for her protected disclosures, she would not have been suspended by her employer.
Is my identity protected?
The act provides that persons or bodies who receive protected disclosures or who subsequently deal with them cannot disclose any information which may identify the person making the protected disclosure. There are exceptions to this, such as if identifying the whistleblower is essential to the investigation of the matter or required to prevent crime or risks to public health or the environment.
Who do I report to?
You can report to your employer or if you are employed in a public body to the Minister of that body. There are also certain prescribed persons provided for under law such as specified recipients for the Central Bank, Health and Safety Authority and Data Protection and other State bodies.
What if reporting wrongdoing is part of your job?
The 2014 Act is quite specific in this context. It provides that a report is not a ‘Protected Disclosure’ if it is part of your job or work to detect and/or investigate the wrongdoing you are referring to in your protected disclosure.
In A Public Servant v A Government Department (AdJ-00004925), the employee, as part of his job, was reviewing and overseeing a business. He reported that the business was failing to comply with their legal obligations. This was reported to his manager.
Two months later, he was suspended for unrelated allegations. The employee then brought a claim to the WRC that his suspension was penalisation arising from his protected disclosure.
The WRC held that his disclosure was not covered by the Act, as it was part of his job, to detect such matters and that it did not constitute a wrongdoing by his own employer.
Similarly, in Donegal County Council v Liam Carr (PDD161), a Fire Station Officer alleged that he had made 6 separate protected disclosures. Four of the complaints related to the alleged behaviour of fire-fighters in the station. One related to a work payments claim and the other related to the physical fitness of two fire-fighters in relation to their ability to carry out their jobs.
The employee alleged that as a result of these protected disclosures, he suffered penalisation in the form of being undermined in his position as Station Manager.
The Labour Court held that the allegations could not constitute protected disclosures as it was part of his role as a Station Officer to detect and report such matters.
What should Employers have in place?
It is important that all employers have a Protected Disclosure/Whistleblowing policy in place, which sets out clearly how a disclosure can be made by an employee, how it will be dealt with and to whom it should be made.
Once there is a policy in place there is an obligation on both the employee and employer to use the procedures set out in the policy. This was affirmed in the case Employee v Employee (ADJ-00003371) where the WRC criticised the employee for not using the policy which had been put in place by the employer.
What are the timeframes for bringing a complaint?
An employee has 6 months from the date of the alleged penalisation to bring their claim to the WRC. This can be extended to 12 months if you can show reasonable cause for not doing so within the 6-month period. There is also a timeframe of 21 days from the date of dismissal to bring an injunction application to the Circuit Court restraining the termination of your contract pending the finalisation of the dismissal claim.
Please feel free to contact our office if you believe you have issues relevant to the above matters and would like to discuss same