Whistleblowing

01 May 2016

Updated May 2016

Summarises the main points of the new whistleblowing regime for Ireland set out in the Protected Disclosures Act 2014. Covers key aspects of the Act including who is protected, what a 'protected disclosure' is, disclosure channels and protections, contracting out and compensation, Code of Practice on whistleblowing, takeaways and the CIPD whistleblower advice line.

The Protected Disclosures Act came into operation in July 2014. The Act aims to promote the disclosure of information relating to wrongdoing in the workplace by offering protection for workers from penalisation in circumstances where they make a protected disclosure.

On a broader level, it is part of an anti-corruption mechanism and a key ingredient in the promotion of a culture of public accountability and transparency. The Act is a single overarching piece of legislation. Prior to its enactment, whistleblowing protection existed on a sectoral basis in areas such as health and competition.

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

Internal

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.

Prescribed persons

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.

Minister

A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.

Legal advisor

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.

Other disclosures

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.

Contracting out

Any contractual clause purporting to limit the operation of the Act and preclude a worker from making a protected disclosure is void.

  • Compensation of up to five years' remuneration can be awarded in an unfair dismissal case for having made a protected disclosure.

  • An application for interim relief can brought to the Circuit Court by an employee requesting their reinstatement or reengagement pending the hearing of the unfair dismissal claim.

    To date there has been one reported case in relation to an application for interim relief (Philpott v Marymount University Hospital and Hospice Limited). The employee claimed he was dismissed for making a protected disclosure. He sought an injunction to continue the terms of his employment contract pending the outcome of his claim for unfair dismissal.

    In this case, despite acknowledging the sincerity of the employee, the Court was not satisfied that he had satisfied the tests for interim relief required under the Act (that is, that the beliefs and disclosures were reasonable).

    The case shows that the Circuit Court will thoroughly examine the facts of the case before deciding whether to grant such relief although in this case it didn’t elaborate in detail on the decision making process.

  • Service limitations that usually apply in the case of unfair dismissals are set aside in the case of protected disclosures.

The government published a Code of Practice and model policy on whistleblowing

in September 2015. The Code is designed to assist in the practical implementation of the Act and give guidance on best practice principles to organisations and their workers.

The Code underpins the principle that the disclosure of information relating to wrongdoing in the workplace is best dealt with, in the first instance, at that level. However it also acknowledges that there will be circumstances and situations where this may not be appropriate.

A template policy is appended to the Code. This makes it clear that it should be easy to understand and set out a roadmap for dealing with protected disclosures. Among the elements that should be included in the policy are:

  • The policy should make it clear that the organisation is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner when they discover information which they believe show wrongdoings.
  • The policy should make clear that the organisation will not tolerate the penalisation of a worker who discloses information in line with the policy.
  • The policy should also make clear that the organisation is committed to addressing and dealing with concerns raised in an effective and timely manner.
  • The policy should also specify to whom it applies and the types of concerns that can be raised as a protected disclosure.
  • It should provide guidance on the type of wrongdoing that may be reported, for example, financial irregularity.
  • Ensure a whistleblowing policy is put in place. This is a mandatory requirement for public sector bodies. As a matter of best practice, it is prudent for private sector employers to put policies in place as employers cannot contract out of the provisions of the Act.
  • Ensure training is provided about the policy so that all staff have an awareness and an understanding of what whistleblowing entails.
  • Monitor on an ongoing basis the effectiveness of the policy and review/amend as needed.
  • Consider appointing a dedicated whistleblowing liaison officer and, if so, ensure they receive appropriate training on how to deal with and manage whistleblowing complaints.

We're partnering with Public Concern at Work (PCaW), the whistleblowing charity and leading authority in the field, to offer an advice line to provide confidential advice to Irish members with whistleblowing dilemmas at work.

We have negotiated an enhanced service for our members in Ireland, which is not available to the public. The aim of the advice line is to provide confidential advice to individuals with whistleblowing dilemmas at work.

The service gives you free access to dedicated 1800 advice line manned by legally trained advisers, overseen by qualified lawyers, should members ever find themselves in a dilemma about what to do if they witness wrongdoing in the workplace. An assigned adviser will provide advice and support on raising a whistleblowing concern which will include a follow up call from PCaW to check on progress.

Members can access the CIPD Whistleblower Advice Line by telephoning 1800 303 715.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.