Fiona Sharkey, Solicitor in A&L Goodbody’s Employment Practice Group, has provided answers to some of your questions on the topic of Protected Disclosures, commonly termed 'whistleblowing'.

What is a Protected Disclosure?

It is the disclosure of 'relevant information' which, in the reasonable belief of the person making the disclosure, tends to show a 'relevant wrongdoing' connected to the workplace.

Under the Protected Disclosures Act 2014 (as amended) (the Act):

• ‘relevant wrongdoing’ – can include the commission or likely commission of an offence, endangering of health and safety, misuse of public money and damage to the environment
• 'relevant information' – can also disclose a wrongdoing that is likely to occur. The information should generally be specific and grounded in fact. It should disclose an act that is in violation of some legal obligation

The definition of a Protected Disclosure under the Act is drafted broadly to afford significant protection to the whistleblower. With the introduction of the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018) the protection was restricted slightly: where a Protected Disclosure uses or discloses a trade secret, the worker must show that this disclosure was made in the public interest.

What is not a Protected Disclosure?

Routine workplace grievances are not considered Protected Disclosures. Equally, reports that form a part of the employee's duties are not considered Protected Disclosures. For example, a manager reporting absences in her department does not constitute the making of a protected disclosure.

Do you need ‘Employee’ status to make a Protected Disclosure under the Act?

No. The protections are afforded to all workers and extend beyond the traditional employer-employee relationship. The definition of 'worker' under the Act includes past employees, individuals under implied contracts of service, interns, agency workers and contractors.

Employers should be mindful that the Act does not permit derogation by contract. Contracts that preclude or restrain the making of a Protected Disclosure are void. Therefore, standard confidentiality clauses in contracts of employment as well as settlement agreements do not include Protected Disclosures.

What should an employer be mindful of if an employee has made a Protected Disclosure?

Employees who make a Protected Disclosure are protected from any penalisation (or retaliation) within the meaning of the Act. It is important for employers to ensure that the employee is not dismissed or in any way disadvantaged by making a Protected Disclosure. A successful Unfair Dismissal claim in this regard before the Workplace Relations Commission can carry an award of up to five years' remuneration. 'Whistleblowers' may also find themselves immune from civil or criminal liability subsequent to their making of the Protected Disclosure.

There is no obligation on private sector employers to conduct investigations into Protected Disclosures.

What if a purported ‘Protected Disclosure’ is in dispute?

Where the constitution of a Protected Disclosure is in dispute, the burden of proof is firmly on the employer: “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” This presumption places a high burden on an employer to essentially disprove that a disclosure constitutes a protected disclosure.

A recent decision of the Labour Court is instructive on the elements required to constitute a Protected Disclosure, as set out above.

In Dairygold Co-Op Society Limited v Dermot O’Driscollthe Complainant sought permission from the Respondent, his former employers, to report certain concerns regarding the running of the business to An Garda Síochána in 2011 and 2012. He had worked in the company from 1972-2010 before taking voluntary redundancy and entering into a binding compromise agreement. The Complainant then referred a case to the WRC alleging penalisation for his making of a Protected Disclosure.

The Adjudication Officer found against him. On appeal, the Labour Court upheld the decision. The Court held that the Complainant had failed to demonstrate he had made a Protected Disclosure, noting the following:

(i) his purported Protected Disclosure featured “no allegation of wrong doing by any person or body corporate”

(ii) he had acknowledged in a prior correspondence that he made no allegation of wrongdoing and this was “fatal” to his assertion that he made a Protected Disclosure

(iii) this meant that he did not have a "reasonable belief” that the information disclosed “relevant wrongdoings”

(iv) if there is no disclosure of wrongdoing, the statement or disclosure “cannot be regarded as a protected disclosure” within the meaning of the Act

Any European developments to watch out for?

Employers should be live to the Proposal for a Directive of the European Parliament and of the Council on the Protection of Persons Reporting on Breaches of Union law (the Directive). The Directive, if ultimately approved and implemented, would extend the scope of the Act to include breaches of EU law relating to areas such as public procurement, tax, data protection, consumer protection and public health.

Irish legislation has among the strongest whistleblower protections in the EU. The Directive is therefore unlikely to have radical effect, however, some notable changes proposed are:

(i) The Directive includes legal persons in addition to natural persons in its definition of a 'reporting person' (the whistleblower)

(ii) Currently in Ireland, only public bodies are required to have whistleblowing procedures in place. The Directive would change this requirement to extend to (i) all entities operating in financial services or vulnerable to money laundering; (ii) private entities with more than 50 employees; and (iii) private entities with an annual turnover or balance sheet of €10m or more

(iii) The employer's reporting system should allow whistleblowers to report breaches under the Directive internally prior to any escalation of the matter

(iv) Reporting channels must ensure the confidentiality of the whistleblower's identity, and reports must be followed up within three months. The Directive omits any of the exceptions provided for in relation to anonymity, currently law in Ireland.

(v) The Directive has certain thresholds which, if met, can justify disclosure to external authorities and the media ie if the employer has no internal procedures in place or if there has been no follow-up to a disclosure. This underlines the need for employers to have comprehensive procedures in place to receive and handle disclosures.

(vi) Reversal of burden of proof – instead of an employee having to show penalisation or 'retaliation', the employer would have to prove it was not acting in retaliation. Employers would be familiar with this parallel concept under the Unfair Dismissals Acts 1977-2015, where all dismissals are prima facie deemed to be unfair, unless the employer proves otherwise.

Ahead of the Directive's implementation, private sector organisations should ensure that they have a robust whistleblowing policy in place, with clear measures to protect the identity and position of persons making the disclosure. This should encourage internal reporting and help an organisation deal with an alleged wrongdoing effectively and efficiently. As a result, the organisation will be in a position to retain control over the issue to the extent it can and, where possible, avoid external reporting of an issue.

Further Learning

The Art of Investigating Whistleblowing Claims in Ireland

Whistleblowing Legislation Comparison - Ireland, Northern Ireland and GB

Whistleblowing - Claims for Penalisation