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Protected Disclosures – Top 10 things to know

  1. To be entitled to the protections of the Protected Disclosures Act, 2014 (the “Act”), firstly, you must be a “worker”. The term “worker” is given a very wide definition under the Act and includes employees and related persons. 
  2. Under the Act, a “protected disclosure” is disclosure of relevant information made by a worker through any one of five channels. 
  3. Relevant information” under the Act is information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings, and which came to the worker’s attention in connection with the worker’s employment. The Act lists “relevant wrongdoings”, which includes as a relevant wrongdoing “that an offence has been, or is likely to be committed”, and “that a person has failed or is likely to fail to comply with any legal obligation…”.
  4. The Act also notes that the motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure. This means that if you have a reasonable belief that a wrongdoing has been or is likely to be committed, then the protections of the Act may apply. It is irrelevant whether your belief is ultimately incorrect once the motivation for making the disclosure is not malicious in nature.
  5. To be a “protected disclosure”, the relevant information must be disclosed through any one of five channels: to the employer or, where the worker reasonably believes that the relevant wrongdoing relates to the conduct of that person, to that other responsible person; to a person prescribed by the Minister for Public Expenditure and Reform; to the Minister; to a legal advisor; and through another channel provided certain conditions are satisfied, e.g. the worker reasonably believes he/she would be penalised for making the disclosure by the other channels.
  6. The Act amended the Unfair Dismissals Acts to provide that where an employee is dismissed wholly or mainly because the employee has made a protected disclosure, this reason for dismissal will be deemed to be automatically unfair.
  7. A worker does not need to have 12 months continuous service (as normally required under the Unfair Dismissal Act) to bring a claim for unfair dismissal by reason of making a protected disclosure.
  8. The Protected Disclosures Act also protects from penalisation an employee who makes a protected disclosure. “Penalisation” is broadly defined under the Act as including, among others, suspension, lay-off or dismissal, demotion or loss of opportunity for promotion and unfair treatment.
  9. The possible award for unfair dismissal for making a protected disclosure is reinstatement, reengagement or compensation of up to 260 weeks (5 years) for actual financial loss as is just and equitable.
  10. A worker may seek an injunction in the Circuit Court, pending the hearing of an unfair dismissals claim, seeking reinstatement/re- engagement/continuation of their employment contract. The Protected Disclosures Act provides that employees who claim under the Unfair Dismissals Acts for redress for unfair dismissal by reason of a protected disclosure, can make an application to the Circuit Court for interim relief. The application must be made within 21 days of the dismissal or such longer period as the Court may allow. It is always recommended that an employer have a protected disclosure policy in place and whilst it is mandatory for public bodies to have internal procedures for the making of protected disclosures, it is considered best practice for all private organisations to do this also.
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