Following on from the recent news in relation to secret dossiers being disclosed by a whistleblower, we examine the protections afforded to whistleblowers and set out also guidelines for employers to address this.
The Protected Disclosures Act 2014 (herein referred to as “the Act”) was enacted on 15th July 2014. This Act is an all-encompassing piece of legislation and applies to both public sector and private sector workers.
Although initially raised by the Government in 2004, Whistle-blower protection really came into the public focus after the recommendations of the Mahon Tribunal to bring in a general law protecting all whistle-blowers at the earliest opportunity. The Act follows the UK Law in this area.
The purpose of the Act is to provide a statutory framework within which workers can raise concerns and disclose information regarding potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so. It is important to note that in order to enjoy the protections of the Act, disclosures must be made in accordance with the provisions set out in the Act.
The Act encourages employees to speak up when they see a wrong and provides a legal remedy for that employee if they are dismissed as a result of this reporting then in addition to a potential action for unfair dismissal the employee can claim protection under the Protected Disclosures Act which sets out a number of reliefs for the employee:
- These include an award of 5 year’s remuneration to the employee for an unfair dismissal as a result of a protected disclosure by the employee.
- The employee can also seek interim relief from the Circuit Court preventing them from being dismissed pending the hearing of their claim for unfair dismissal as a result of a protected disclosure. See section 11 of the Protected Disclosures Act, 2014.
- protection from penalisation by the employer (section 12 of the Protected Disclosures Act, 2014); a complaint can be made to a Rights Commissioner who can award up to 5 years’ salary to the worker.
- Section 13 of the Act provides a right of action in tort for any detriment suffered as a result of making a protected disclosure. “Detriment” includes a) coercion, harassment, or intimidation; b) discrimination, disadvantage; c) injury, damage or loss, d) threat of reprisal.
- Section 14 of the Protected Disclosures Act, 2014 provides immunity from civil liability for making a protected disclosure
- Section 15 provides that it shall not be a criminal offence to make a protected disclosure
- Section 16 provides protection to protect the identity of the whistle-blower.
The employee can also bring a claim under the Protected Disclosures Act 2014 without any service requirement. This means that an employee under probation can avail of the protections under the Act.
Despite this, the Act does not give the employee carte blanche to carry on any way they like and then seek the protection of the legislation by making a disclosure. Also the Act will not protect an employee where the employee fails to comply with his own legal obligations under his contract of employment.
For Employers, this is the worst-case scenario in Unfair Dismissal cases as the 2014 Act places a cloak of protection for employees still under probation and employees who might feel vulnerable for any other reason, for performance reasons or because they have done something wrong or otherwise get this cloak of protection by having made the protected disclosures. Although the 5 years’ remuneration has not yet been seen in WRC awards, it is used as a sword in settlement negotiations and thus places a higher value on such claims. Furthermore, the motivation of the employee when making the protected disclosure is irrelevant.
The Procedure for an Employee bringing a claim under the 2014 Act – Interim Relief:
Section 11(2) and Schedule 1 to the 2014 Act provide for interim relief in cases where a claim is brought for unfair dismissal by reason of having made a protected disclosure. Such an application must ordinarily be brought within 21 days of dismissal. Following the hearing of an application, the Circuit Court can find it is likely there are “substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.” The Court can then ask the employer if, pending the employee’s claim for unfair dismissal being determined or settled, the employer is willing to:
- re-instate the employee; or
- re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable if the employee had not been dismissed.
If the employer is not willing to reinstate the employee, and the Court is of the opinion that it is reasonable for the employee to refuse to accept an offer of re-engagement made by the employer, the Court will make an order for the continuation of the employee’s contract of employment.
An order to this effect is akin to an equitable order from the High Court for an interlocutory injunction, hence why it is referred to as a ‘statutory injunction’. If such an order is made by the Court, the effect is, in practical terms, to reverse the effect of the dismissal on an interim basis pending the outcome of the employee’s unfair dismissal claim.
Case Study: Lifeline Ambulances
At Naas Circuit Court on the 29th July 2016, Judge Francis Comerford ruled there are substantial grounds for contending that the dismissal of two senior managers, Mick Dougan and Sean Clarke at the Lifeline ambulance company was wholly or mainly due to their submission of a disclosure of alleged wrongdoing to the Revenue Commissioners. The employees of Lifeline Ambulance Service Limited had sought reinstatement to their posts or the continuation of payment of their salary until their unfair dismissal case would be heard at the Workplace Relations Commission.
In his ruling Judge Francis Comerford said he could not find that the employees’ dismissal was wholly or mainly due to the protected disclosure they had made to the Revenue Commissioners on the evidence presented to him. However, the claimants did meet the threshold of establishing that there were substantial grounds for contending that the dismissal of Mr Dougan and Mr Clarke was wholly or mainly due to the protected disclosure. Judge Francis Comerford made an order obliging Lifeline Ambulances to pay the salaries of Mr Dougan and Mr Clarke until their unfair dismissal case is heard at the Workplace Relations Commission. The Judge also awarded costs against the Company.
This is the first protected disclosures case which has resulted in an order for interim relief being awarded against an employer under the Act. Thus, If an employer is planning to dismiss an employee who has made a protected disclosure, it will need to exercise caution.
What is a Protected Disclosure?
Whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which came to the worker’s attention in connection with the worker’s employment. Relevant wrong doings are broadly defined in the Act and include the following:
- Commission of an offence — has happened, is happening, or is likely to happen;
- Failure to comply with any legal obligation (other than one arising under the worker’s contract of employment);
- Miscarriage of justice;
- Health and safety of any individual;
- Misuse of public money;
- Gross mismanagement by public body;
- Damage to the environment;
- Destruction or concealment of information relating to any of the above.
It is important to note that a matter is not regarded as a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
The Act sets out a tiered system for making a protective disclosure;
- Report the wrongdoing to management
- Report the wrongdoing to an outside body “A Regulator” an example of this would be the Health and Safety Authority or the Revenue Commissioners.
- The third tier is to report the wrongdoing to the media.
In all tiers, the Act, provides for protection for the whistle-blower and provides that if a disclosure is made by an employee in line with the channels set out in the legislation, an employee is protected from penalisation by the employer. Penalisation is defined in the Act and includes for example:
- Transfer of duties, change of location, change in working hours, reduction in wages;
- Imposition of reprimand, discipline or other penalty;
- Unfair treatment;
- Harassment, threat of reprisal.
The Act protects voluntary reporting and does not absolve any employee from a pre-existing mandatory reporting obligation. Likewise, where additional protections apply these also remain in force.
What can Employers Do:
A Code of Practice has been developed pursuant to S.I. No. 464 of 2015 Industrial Relations Act 1990 (Code of Practice On Protected Disclosures Act 2014) (Declaration) Order 2015.
This Code underpins the principle that:
- the disclosure of information relating to wrongdoing in the workplace is best dealt with in the first instance at workplace level. However, there may be circumstances where this may not be appropriate;
- it is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing” in the workplace.
It is recommended, therefore, that all organisations should have an agreed whistleblowing policy in place in addition to grievance policies to ensure that:
- Workers are assured of a safe and confidential avenue to make their disclosures;
- Employers are given the opportunity to address issues arising at the earliest possible opportunity or where the discloser is mistaken or unaware of all the facts surrounding the issues raised, and to take the opportunity to assure the worker that his/her concerns are unfounded;
- There is a clearly understood procedure governing the protected disclosure of information.
The WRC give two such examples of whistle blower disclosure:
Example of a whistleblowing disclosure:
- In a hazardous work situation information regarding a failure to provide or wear protective clothing and adhere to health and safety guidelines;
- Information about the improper use of funds, bribery and fraud.
The WRC state that an effective policy helps workers understand how to make a disclosure and can make it easier for employers to find out when something goes wrong. It also makes it more likely that persons making disclosures will make disclosures “in house” and look to internal resolutions. The risk of not having a policy is that a worker will not feel protected and will be inclined to go an external route.
As this is a developing area in Irish Law, the first successful injunction in this area as granted in the LifeLine Ambulance’s case along with the reliefs and protections for employees, shows the potential for a litany of litigation in both the Circuit Court and WRC under the Protective Disclosures Act. Although the Act was enacted to deal with corruption it has far ranging consequences for Employers who should proceed with caution when planning to dismiss an employee who has made a protected disclosure either ‘in house’ or externally to a body such as the Health and Safety Authority, the Gardaí or to the Revenue Commissioners.