The Protected Disclosures Act – What this means for Employees & Employers

I recently attended an Association of Compliance Officers Ireland (ACOI) seminar, the topic of which was the recently introduced Protected Disclosures Act and the rights of workers who report on wrongdoing in the workplace (Whistleblowers). It really opened my eyes as to how far Ireland is moving to protect the rights of such employees in both the public and private sectors. Gone will be the days (or so we hope) when we collectively turned a blind eye to major and minor wrongdoing in the workplace as the introduction of this new legislation brings with it a range of protective measures designed with the rights of the whistleblower in mind.

The guest speaker – Philip Brennan – MD of spoke at length about the Protected Disclosures Act which was introduced on July 15th 2014, with the aim of providing a range of protections to employees making “protected disclosures” and protecting them from suffering “penalisation” by their employer.

Above all else the law requires that the whistleblower’s identity be protected as far as possible.  Whilst this seems fine in theory, one wonders how realistic it will be to expect this level of protection? Although a failure to comply is actionable if the whistleblower suffers any loss, there will always be practical problems. E.g. in smaller companies with a limited number of employees, the process of deduction could eventually lead to the whistleblower being identified. Whilst the employee may be entitled to limited civil/criminal immunity from prosecution under this Act, it’s of limited use if your cover is blown and you still need to go into work on a daily basis? Many employees operate in small industries and word tends to spread pretty quickly. It could potentially make for an uncomfortable atmosphere for a whistleblower if workplace colleagues and/or superiors know it was them that raised concerns about suspected wrongdoing or malpractice.  For this reason employers need to carefully consider the actions they take not just to prevent disclosure of the name of the whistleblower but also what action they take to prevent their identity being uncovered.

Under the Act, the expectation is that once a “relevant wrongdoing” has been identified and reported, should an employee successfully prove to a Rights Commissioner, the Employment Appeals Tribunal or, as appropriate the Circuit Court that he/she was unfairly dismissed as a result, compensation of up to a maximum of 5 years remuneration may apply. (Note: Under the terms of the Unfair Dismissal’s Act, a maximum of 2 years applies in other circumstances) In addition whistleblowers are protected against any ‘penalisation’ suffered by them or their family at the hands of an employer or third party that could be deemed detrimental. Once again the expectation here is that the rights of the employee will be protected, but only following successful application to a Rights Commissioner, the Tribunal or the Circuit Court (in the case of an employer) or pursuing a right of action in tort through the Courts (in the case of a third party).

From an employer’s point of view, they are recommended to introduce a policy setting out in clear language what a worker should do if any wrongdoing comes to their attention and should nominate a credible person to whom the worker can speak in confidence. Compliance Officers should play a vital role in the introduction of the policy and related procedures and exercise oversight of the operation of the PDA, validating that disclosures are actioned appropriately and that Management and staff are aware of the guidelines and steps to be taken in the event of a disclosure. This legislation applies equally across both the public and private sectors but public bodies are required by law to provide and maintain procedures for their workers and to report annually on the operation of the legislation within their body.

So what does this all mean going forward? Well the winds of change are hopefully starting to blow throughout workplaces and one would hope that the culture of indifference to perceived wrongdoing will, over time, be swept away. From an ethical or moral standpoint the introduction of this protection was essential, as too often in the past the rights of workers who reported on these activities were ignored and they were simply side-lined. The robust nature of this Act means that workers can now report on wrongdoing with the comfort blanket of the law. But the main benefit will hopefully be the cultural shift it will create over time which should lead to better working environments for all.

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