What is a protected disclosure?

Protected disclosures is defined under the Protected Disclosures Act 2014, as amended as a disclosure of relevant information made by a worker. Information is relevant information if:

(a) in the reasonable belief of the worker, the information tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in a work-related context. 

'Relevant wrongdoings' include a broad range of activities to include the following:

(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, 
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,
(h) that a breach has occurred, is occurring or is likely to occur, or
(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

The 2022 Act also adds the occurrence (or likely occurrence) of a breach of a whole range of obligations arising under EU law to include but not limited to public procurement, financial services/anti money laundering, product safety and compliance, transport safety and environmental protection under the heading of relevant wrongdoing.

Protection is provided to whistleblowers or those who are penalised by reason of making a protected disclosure. Penalisation is defined as any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker.

Exceptions

Helpfully, the Protected Disclosures Act 2014, as amended excludes the following from the definition of a protected disclosure:

a)    if it is the function of the worker or the worker’s employer to detect, investigate or prosecute
b)    a matter concerning interpersonal grievances
c)    a disclosure of information in the course of obtaining legal advice.

Recent cases 

Many penalisation claims brought under the Protected Disclosures Act ("the Act") are unsuccessful. However, when claims are successful awards can be punitive in nature as the Act empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”.

We have considered a number of recent successful cases which came before the Workplace Relations Commission ("WRC") and High Court under both protected disclosure and unfair dismissal legislation and the learnings from those cases.

A Worker v A Massage Therapy Business, ADJ-00043225/2023 

The maximum award of 5 years pay/ 260 weeks €91,000 was made by the WRC in the case of A Worker v A Massage Therapy Business, ADJ-00043225/2023. The Complainant was employed as a masseuse by the Respondent in February 2020.The Complainant raised concerns when she was instructed that she was required to provide sexual services to clients as part of her role. The Complainant was expressly told that she would get less work if she did not provide sexual services. The Adjudicator determined that there was a causal link between the concerns raised, which met the definition of a protected disclosure and the penalisation. The Adjudication Officer took into consideration in awarding the maximum level Her first language was not English meaning she was an exceptionally vulnerable worker. The legislative intention behind protected disclosures legislation was to afford a very high degree of protection to persons making protected disclosures, The Adjudication Officer took the view that the basis of assessment of compensation is not limited solely to financial loss and consideration may be given to other factors which may include an assessment of whether an award is effective, proportionate or dissuasive. This decision demonstrates that Adjudication Officers can make punitive awards under the legislation and are open to doing so in appropriate cases.

Jennifer Clancy v The Manager, Templeogue College ADJ-00042323/2024 

The case of Jennifer Clancy v The Manager, Templeogue College ADJ-00042323/2024 concerned a signed collective grievance concerning relations within Templeogue College. The collective grievance was signed and lodged by 11 employees of the College. The grievance largely related to changes that were made to work practices within the school.  A total of 17 grievances were raised. The Adjudication Officer noted that the Respondent accepted that the Complainant made a protected disclosure when she signed the collective grievance along with her colleagues on 7 February 2022.

The Complainant alleged she was penalised on a number of grounds to include:

• By being assigned to work largely in the afternoons instead of in the mornings, which she had always done, prior to having made the protected disclosure. The Complainant always worked mornings as she had primary school going children. This had been accommodated by the Respondent before the protected disclosure had been made. 
  
• That the practice whereby teachers begin teaching a particular class/year and continued with these students until Leaving Certificate had been discontinued following the protected disclosure.
  
• That the Complainant was shouted at by the principal in her office at a meeting on 26 August 2022 during which she had sought to discuss the altered timetable and;
  
• That the Principal sought to initiate disciplinary procedures against her but never explained why.
  

The Adjudication Officer accepted four of the allegations were acts of penalisation and was satisfied the Complainant had established a connection between the protected disclosure and the act of penalisation. The Adjudication Officer awarded the Complainant 15 months' salary €39,912.00, noting that no evidence was presented to suggest that the Complainant was at a financial loss because of the penalisation or that it would negatively impact either her career or her reputation at any stage in the future.

Breban v. Catch Security Systems [2025] IEHC 366

In the recent High Court case of Breban v. Catch Security Systems [2025] IEHC 366 the appellant/employee brought an injunction application to the Circuit Court for penalisation under the Protected Disclosures Act 2014, as amended was unsuccessful and appealed the matter to the High Court. The Appellant was employed by the Respondent as an installation/security systems engineer. The appellant had examined a fire safety alarm panel in respect of an apartment above a pub premises on 2 May 2024 in Cork as part of his job. The Appellant believed there was a significant fire safety issue for the apartment. He raised this concern with his colleague on site at the time and subsequently to his employer by email on 8 May 2024.  Following raising these concerns the appellant's work equipment was taken from him, no further fire related jobs were assigned to him and his employment was terminated. The Respondent relied upon the exclusion in s.5(5) of the Act, namely, a matter does not amount to a “relevant wrongdoing” – i.e., “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. ”

This argument was unsuccessful. Brett J in his judgement noted that the Appellant had sufficiently established a reasonable, arguable and weighty ground that his dismissal arose wholly or mainly as a result of his disclosure, in light of its sufficient proximity with his dismissal. He concluded that the appellant had established the requirements for interim relief under the provisions of s.11 Schedule. The judge confirmed that the Appellant was not permitted to use the Section 5(5) exemption as a defence as that exemption must be strictly construed. This is an unhelpful judgement for employers seeking to rely on the work related exception within the legislation.

A Finance Manager v a Charity - ADJ-00051548/2025 

In the case of A Finance Manager v a Charity - ADJ-00051548/2025 involved a dismissal based penalisation claims under unfair dismissals legislation. The Complainant was hired by the Respondent on 1 September 2023 and was subsequently fired by the Respondent on 2 November 2023. The Complainant was employed as a finance manager with less than 12 months service who made a claim for unfair dismissal relying on the service exemption for whistleblowers. The Complainant alleged that he was dismissed as a result of making a protected disclosure. He argued that he had raised concerns with the CEO via an email of 27 October 2023 regarding a draft loss of €33,000 and concerns regarding their ability to pass a financial audit at the end of January 2024. On foot of that email the CEO raised concerns about the Complainant's performance at a board meeting held on 1 November 2023. At this meeting the CEO recommended the Complainant's dismissal.  The Complainant received a letter terminating his employment (on notice in line with his employment contract) the day after the meeting on 2 November 2023 while still on probation. There was a dispute between the parties as to whether performance was an issue. The Respondent argued that the concerns raised were not identified as a protected disclosure.  The email of 27 October 2023 was accepted to be the protected disclosure by the Adjudication Officer noting that there was no requirement for the employer to be aware the disclosure was a protected disclosure for it to be deemed as such. It was accepted that the dismissal resulted "wholly or mainly from the employee having made a protected disclosure”. Even though there were performance issues, the email of the 27 October 2023 appeared to have acted as a catalyst for the dismissal. The Complainant sought reinstatement which was rejected as unworkable. An award of  €34,737.00 was made to the Complainant.

It is notable that in this case the Respondent made a successful application for the hearing to be conducted in private and the parties names anonymised on public interest grounds. They relied on the fact that there were ongoing investigations by the state which might be prejudiced and the sensitive work being completed by the charity.

Takeaways 

• Employers should ensure they have a clear protected disclosure policy that is well notified to employees and managers. From 17 December 2023, such policies are mandatory for private sector organisations employing 50 or more. 
  
• Employers should be aware and mindful of the narrow application of the work related exception under section 5(5) in light of the recent Circuit Court decision. 
  
• In determining an award, the Adjudication Officer will take into consideration the nature of the employer's behaviour and will impose a punitive award for poor behaviour. 
  
• The Adjudication Officer will also consider factors related to the employee, which may exacerbate the employer's behaviour, such as an employee's vulnerability, financial losses, whether English is their first language and other mitigating factors. 
  
• Due to the public interest element of protected disclosure cases applications for a private hearings are difficult to achieve, with a high bar being applied by the WRC. 
  
• Employers should be aware that there are several avenues available to employees who act as whistleblowers, both before the WRC and the civil courts, and that 12 months service is not required for these claims.

This article was provided by Katie Doherty, Employment Solicitor, DAC Beachcroft Dublin's employment team.

DAC Beachcroft Dublin

www.dacbeachcroft.com/en/