What are Protected Disclosures?
A protected disclosures are defined in the Protected Disclosure Act. It is a disclosure by an employee of a wrongdoing. This disclosure is required to be a wrongdoing in the reasonable belief of the worker and it ought to have come to the workers attention in the course or connection with their employment.
Once this is satisfied they are protected from penalisation for, in effect, blowing the whistle on the wrongdoing. The point of this to protect employees from making disclosures to their employers where they assert that the employer has failed to comply with their obligations.
Where a protected disclosure has been made, the whistle blower ought not be subjected to penalisation because of the ‘whistleblowing’ or there are statutory consequences.
What is a relevant wrongdoing?A relevant wrongdoing is where:
- An offense has been, is being or is likely to be committed; or
- An Employer has failed, is failing or is likely to fail to comply with their legal obligation; or
- A Miscarriage of Justice has, is being or is likely to occur;
- That the health or safety of any individual has been, is being or is likely to be endangered;
- The environment has been, is being or likely to be damaged;
- That a misappropriation of funds or resources of public money has, is or is likely to occur;
- That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement;
- That a breach of EU Law has, is or is likely to occur or
- That information in relation to the above has been, is being or is likely to be concealed or destroyed.
What is not a relevant wrongdoing?
A matter is not a wrongdoing if it is within the function of the worker or his employer to detect, investigate or prosecute. There must also be no act or omission on the part of the employer.
Consequences for Penalisation
A worker found by the WRC to have been penalised can be awarded up to 5 years pay or €15,000 where they are not in receipt of remuneration.
The Supreme Court in Ireland examined the law in this area in detail in Tibor Baranya v Rosderra Irish Meats Group Limited (2021) (S:AP:IE:2021:000027)
This case concerned a gentleman who skinned carcasses in a meat factory. He argued that the repetitive nature of the job would give rise to an injury and this he claimed was a protected disclosure. Up until this case, the WRC and the Labour Court had consistently held that an employee could not raise a protected disclosure in respect of his own work practices as this ought to be raised in a grievance.
The Supreme Court disagreed.They held;
- The 2015 Code of Practice erroneously stated that work place complaints fell outside of the scope of protected disclosures.
- The Labour Court failed to ascertain the exact words of the protected disclosure made by the Complainant.
The 2022 amendment inserted a new provision which expanded the definition of relevant wrongdoing and applied a presumption in law.
The amendment introduced the design and procedures for employers to follow when a worker has made a protected disclosure. An employer now has an obligation to make a report when a protected disclosure has been made. The procedure involving anonymous reporting has also been detailed.
Protected disclosures are designed to enable workers to make disclosures when a wrongdoing has occurred. They are protected from penalisation. A relevant wrongdoing must have occurred otherwise they will not be protected under the act.
Employers have an obligation to comply with procedure and will be exposed where not followed.