Who is protected?
The Act protects workers in all sectors. The concept of worker is widely defined and extends to employees, contractors, consultants, agency staff, former employees, temporary employees and interns/trainees.
What is a 'protected disclosure'?
This is also widely defined. It means disclosure of relevant information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings that came to the attention of the worker in connection with their employment.
Relevant wrongdoings are defined in an exhaustive list and include the following:
- the commission of an offence
- a miscarriage of justice
- non-compliance with a legal obligation
- health and safety threats
- misuse of public monies
- mismanagement by a public official
- damage to the environment
- concealment or destruction of information relating to any of the foregoing
The motivation for making the disclosure is irrelevant. However, there is provision allowing for compensation payable under the legislation to be reduced by up to 25% where it transpires that the investigation of the relevant wrongdoing concerned was not the only or main motivation for making the disclosure.
The Act is retrospective in effect so that a disclosure made before the Act commenced may be a protected disclosure.
What are the disclosure channels?
The Act provides for a number of distinct channels for those who wish to make a protected disclosure including:
- to an employer or other responsible person
- to a prescribed person
- to a minister
- to a legal advisor
- to other persons
A worker may make a protected disclosure to their employer where they reasonably believe that the information shows or tends to show wrongdoing. If the worker reasonably believes that the wrongdoing relates to the conduct of some person other than their employer or it is something for which some other person has legal responsibility, then the disclosure can be made to that person.
The Act provides for the Minister to prescribe a wide list of prescribed persons. A Statutory Instrument sets out 72 bodies that have been designated prescribed persons for the purposes of the legislation. Where a worker chooses to disclose in this manner, they must reasonably believe the information disclosed, and any allegation contained in it, to be substantially true.
A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.
A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union official or an official of an excepted body is protected. There is no threshold of belief in this category.
There is also provision for disclosure in other circumstances, that is, disclosure potentially into the public domain such as to the media, where the standard for reporting is significantly higher.
In order for such a disclosure to be protected the worker must:
- reasonably believe that the information disclosed is substantially true
- not make the disclosure for personal gain
- believe that the making of the disclosure is in all the circumstances reasonable
In addition one or more of the following conditions must be met:
- At the time of making the disclosure, the worker reasonably believes that they will be subject to penalisation by their employer if the disclosure was made to the employer.
- In a case where there is no prescribed person in relation to the wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if the disclosure is made to the employer.
- The worker has previously made a disclosure of substantially the same nature to their employer or a prescribed person and no action was taken.
- The relevant wrongdoing is of an exceptionally serious nature.
In determining whether the disclosure is, in all the circumstances, reasonable regard should be had to a number of factors including:
- the identity of the person to whom the disclosure is made
- the seriousness of the relevant wrongdoing
- whether the wrongdoing is continuing or likely to occur in the future
- whether the disclosure is made in breach of a duty of confidentiality
What are the protections?
The Act provides whistleblowers with the following specific protections:
- Protection from dismissal for having made a protected disclosure.
- Protection from penalisation by the employer.
- Civil immunity from actions for damages.
- A qualified privilege under defamation law.
- A right of action in tort where a whistleblower or a member of their family experiences coercion, intimidation, harassment or discrimination at the hand of a third party.
- Protection of their identity subject to certain exceptions.
- Immunity from criminal liability for making a protected disclosure.
The protections also remain available if the information disclosed on examination does not reveal wrongdoings. Deliberate false reporting will not meet the reasonable belief test and is accordingly not protected.
Public sector bodies
All public sector organisations must establish and publish internal procedures for protected disclosures.
Any contractual clause purporting to limit the operation of the Act and preclude a worker from making a protected disclosure is void.