The Protected Disclosures Act, 2014 which was recently introduced by Minister Brendan Howlin is one of the most important pieces of employment legislation introduced in recent years and recognised by the OECD as the strongest whistleblowing legislation in Europe. It gives protection for workers who are threatened with, or suffer detriment, at the hands of their employers for “whistleblowing” in accordance with the provisions of the legislation. This brief FAQ gives a broad overview of the provisions and should not be relied upon as a legal guide to the Act as there are extensive provisions within the Act. As with all employment legislation, SIPTU members can seek individual advice and assistance through the Workers Rights Centre (1890 747 881).
How is a worker defined for the purposes of the Act?
The definition is the widest so far in employment legislation and there are 4 main groups that come under the legislation:
- Agency Workers
- People gaining work experience
Importantly, the 12 month service requirement under the Unfair Dismissals Acts will not apply and therefore protection will be from day one of employment.
What type of matters would fall under protected disclosures?
- The commission of a criminal offence
- Failure to comply with a legal obligation
- Miscarriages of justice
- Threat to health and safety
- Damage to the environment
- Misuse of public funds
- Public mismanagement/maladministration
What is the process for making the disclosure?
In order to attract the protections under the Act, the worker must have a reasonable belief in the allegations made and he/she must go through the prescribed channels which means a worker may communicate his/her disclosure to;
- An employer (an internal disclosure)
- A legal advisor in the course of obtaining legal advice ( a legal advisor includes a barrister, solicitor or trade union official for the purposes of this legislation)
- Externally to a regulatory body (these will be set out shortly)
- Externally to a Government Minister (in the case of a worker in a State Body)
- Externally to others (e.g media or a member of the house of the Oireachtas). stronger qualifying criteria must be met for external disclosure. The disclosure must not be for personal gain, there must be a reasonable belief that victimisation will ensue and the worker reasonably believed that the employer would either conceal or destroy the evidence, or in the alternative the matter was raised with the employer and no action was taken
What protections are there for the worker?
If it is a protected disclosure the employer cannot penalise or threaten to penalise an employee worker and there is immunity from civil liability i.e. the whistleblower cannot be sued for defamation, if the subject matter qualifies as a protected disclosure. The protections in the legislation will not apply to false disclosures deliberately made.
If a contravention on the prohibition on penalisation is alleged then the employee can bring his/her claim to a Rights Commissioner, The Labour Court or the Circuit Court (see below).
What are the specific protections relating to Unfair Dismissals?
Significantly, and for the first time ever in Irish employment law, an employee can apply to the Circuit Court for a statutory injunction within 21 days of the dismissal seeking re-instatement/re-engagement, as determined by the Court in accordance with the specific provisions laid down in the Act. Trade unions lobbied strongly for this form of interim relief and the arguments for such a provision were outlined in this column in the September 2013 edition of Liberty.
The cap of two years salary as compensation under the Unfair Dismissals Acts is increased to a maximum of five years and the protections for the employee is are put in place from day one of the employment i.e. there is no minimum service requirement.