The RDJ Employment Team is seeing an increasing number of claims under the Protected Disclosures Act 2014 (the “2014 Act”) in practice. An employee who alleges to have been dismissed, penalised or threatened with penalisation for having made a protected disclosure (or whistleblowing) can bring a complaint before the Workplace Relations Commission (“WRC”) under the 2014 Act. Further, an employee who claims to have been dismissed or claims to have suffered some other penalisation wholly or mainly for having made a protected disclosure can also apply to the Circuit Court for interim relief pending the outcome of the WRC complaint. We’ve put together guidance on managing this challenging area of employment law.

The recently published High Court decision of Brett J in Breban v. Catch Security Systems [2025] IEHC 366 (“Breban”) is an informative decision for employers who seek to assert section 5(5) in the defence of both substantive claims and interim relief claims under the 2014 Act, i.e., that a disclosure is not a protected disclosure by virtue of the fact that it is the employee’s role and function to identify and disclose the information alleged to be a ‘protected disclosure’.  In this article, we explore the High Court’s decision in Breban which sheds a light on how section 5(5) operates and analyse some current trends in this area. 

The 2014 Act – Key Provisions

• Section 5(1) of the 2014 Act defines a protected disclosure as “a disclosure of relevant information made by a worker in the manner specified in [the 2014 Act]”. “Relevant information” is defined as information if “in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context.” 
   
  
• Section 5(5) provides that “a matter is not 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”.   In the Statutory Guidance published in 2023 by the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, available here, it is noted that even if the wrongdoing is a function of the reporting person to detect, investigate or prosecute, it will still be a protected disclosure if the wrongdoing involves an act or omission on the part of the employer. In the case of Clarke v GGI Foods [2020] IEHC 368, the High Court has stated that “there are two requirements (an investigative function and misconduct other than by the employer), which must both be present to exclude something from the definition of relevant wrongdoing”. An example frequently put forward is that of a member of An Garda Síochána reporting a wrongdoing by a person outside of An Garda Síochána. Detecting and investigating such matters falls within the duties of a Garda and will therefore not constitute a protected disclosure. 
   
  
• Section 5(8) sets out a presumption that a disclosure is presumed to be a protected disclosure until the contrary is proven. Therefore, the employer bears the somewhat onerous burden of demonstrating that an alleged protected disclosure is in fact not a protected disclosure within the meaning of the 2014 Act.
   
  
• Schedule 1 to section 11 governs applications for interim relief made to the Circuit Court under the 2014 Act.
  

The Breban Decision

Background

The Appellant was employed by the Respondent company as an installation/security systems engineer. His contractual duties were installing, servicing and maintaining client security systems. In the course of his duties, the Appellant was called in to do work on a client pub and observed a fire safety alarm panel for the apartment above the pub premises which was not connected to the general fire protections systems in place in the pub below. He believed that this was a significant fire safety concern. He reported it to his employer via email on 8th May 2024. The Appellant maintained that this email constituted a protected disclosure within the meaning of the Protected Disclosures Act 2014. The Appellant asserted that thereafter, work equipment was taken from him, and no further fire related jobs were assigned to him. 

The Respondent submitted that the County Council’s fire officer had raised no difficulty or recommendation in respect of the apartment but nonetheless the Respondent considered the Appellant’s observations in conjunction with the fire consultant and the premises owner, and it was established that no further works were required (i.e. there was no wrongdoing).
On 5th July 2024, the Appellant’s employment was terminated. The Respondent’s position was the termination was unconnected with any concerns raised by the Appellant but rather arose because it had received multiple complaints regarding the Appellant’s performance and interactions with customers in June 2024, and one complaint in July 2024 relating to refusal to rectify customer work.

The Claims 

The Appellant brought an application for interim relief before the Circuit Court seeking continuation of his contract of employment, arguing his email dated 8th May 2024 was a protected disclosure and was wholly or mainly the reason for his dismissal. The application for interim relief was brought before he lodged his substantive unfair dismissal complaint for having made a protected disclosure within the meaning of the 2014 Act with WRC. 
The Circuit Court refused the Appellant’s application for interim relief. The Appellant appealed this decision to the High Court.

Submissions to the High Court

Brett J confirmed the sole issue to be determined by the High Court was whether the Appellant was entitled to interim relief pending the determination of his claim before the WRC and that disputes in respect of key factual matters are matters to be determined before the WRC. 

The Appellant submitted that section 5(5) had been wrongly interpreted by the Circuit Court and/or did not apply as it was not the Appellant’s function to “detect, investigate or prosecute” wrongdoings. 

The Respondent brought an interesting application to strike out the Appellant’s application for interim relief in limine given it was brought in advance of a substantive complaint being lodged to the WRC. Brett J refused this application and held it is not clear in the Schedule to section 11 that an applicant is wholly precluded from initiating an application for interim relief to the Circuit Court in advance of a complaint to the WRC. They are different statutory processes with different timeframes and different forums, and it was not unreasonable for the Appellant’s immediate focus to be on interim relief.

The Respondent submitted that the Appellant had not demonstrated that there were substantial grounds for contending the dismissal resulted wholly or mainly from him having made a protected disclosure as:
a.    The 8th May 2024 email was not a protected disclosure as it did not contain “relevant information”; and
b.    There was no “relevant wrongdoing”, because there was nothing wrong with the alarm system. Further to that, by virtue of section 5(5) of the 2014 Act, it was the function of the Appellant as a worker and the Respondent as employer to detect, investigate or prosecute such matters which did not consist of or involve an act or omission on behalf of the employer

High Court Consideration of Issues

To the Respondent’s submission that there had been no relevant wrongdoing, therefore there was no protected disclosure, the Court confirmed all that is required is “the reasonable belief of the worker” that the information tended to show relevant wrongdoing. The Court was satisfied that the belief of the Appellant was reasonably held at the time of writing the email of 8th May 2024 in light of the content of the email and the correlating fire safety offences which the Appellant set out he believed to have arisen. 

The Court then shed some light on the interpretation of section 5(5) which is often relied upon by employers in the defence of claims under the 2014 Act. The Appellant submitted the Circuit Court misinterpreted section 5(5) and the Respondent submitted that there was no “relevant wrongdoing” as, pursuant to section 5(5), it was the Appellant’s role to ‘detect, investigate or prosecute’ fire safety matters. 

The Court referred to Clarke v CGI Food Services Limited [2020] IEHC 368 and Nolan v Fingal County Council (2022) IEHC (“Nolan”). 

In Nolan, Phelan J opined on the correct interpretation of section 5(5) that “[a]s a limitation on the scope of the protection available under the 2014 Act, it falls to be narrowly construed. In essence it provides that if it is the worker’s or the employer’s role to detect, investigate or prosecute any wrongdoing and the wrongdoing reported relates to a person other than the employer, then it is not a wrongdoing for the purpose of the Act.” 

Phelan J stated that the language of section 5(5) connotes a public law role or at least an official role pursuant to a contractual obligation in detecting, investigating or prosecuting. A different interpretation of section 5(5) would render the 2014 Act void of its effect as an obligation to investigate wrongdoing in the workplace could arguably be implied as a general duty of any employer and this could not have been the statutory intention. 

The Court in Breban interpreted section 5(5) in line with the above caselaw with Brett J noting the section 5(5) limitation must be strictly construed. As such, the Court held that the Respondent, despite their submission that the Appellant held an official role pursuant to a particular contractual obligation, had not fallen within the exception of section 5(5). While there was an element of detection or investigation within the role performed by the employer and its employees, this was not at the same level as a public law official or an official role pursuant to contractual obligation. 

On the issue of whether the dismissal stemmed wholly or mainly from the protected disclosure, the Court confirmed this was a matter for determination by the WRC, however, for the purpose of the interim relief application, the Court held that the proximity of time is a useful consideration. The Respondent relied on multiple complaints made against the Appellant as the reason for his dismissal, but this was vague and unexplained despite the Appellant’s request for details. The Appellant previously had an unblemished service record and complaints seemingly arose in June 2024 after the Complainant’s alleged protected disclosure in his email of 8th May 2024. Therefore, the Court concluded the Appellant had sufficiently established that his dismissal arose wholly or mainly as a result of his disclosure.

Appeal Allowed

The Appellant demonstrated it was likely that there were substantial grounds for contending the email of 8th May 2024 constituted a protected disclosure as it drew the employer’s attention to matters he reasonably believed to be potential illegalities and wrongdoings under fire safety provisions arising from his work. The Court was satisfied the Appellant demonstrated that his dismissal resulted wholly or mainly from the disclosure of fire safety concerns. Therefore, he met the requirements for interim relief and the appeal was allowed. 
RDJ Analysis and Commentary
The High Court’s narrow interpretation of section 5(5) in Breban certainly limits the scope of the section 5(5) defence and makes it more difficult for employers to rely on this defence. While detecting or reporting certain issues may fall within an employee’s remit, this will not necessarily enable an employer to rely successfully on the exception as a means to defend either or both a claim for interim relief before the Circuit Court or a substantive WRC claim under the 2014 Act. This decision confirms the words “to detect, investigate or prosecute” do not widely embrace general duties. The decision also confirms that wrongdoing need not have actually occurred so long as the employee reasonably believed it to have.

As is a trend across all statutory employment claims, there has been a notable increase in claims under the 2014 Act in recent years. Such claims are made by those who have been dismissed from employment (often before they have the 12 months service required to bring an unfair dismissal claim) and also by employees who remain in employment but allege penalisation. This increase is perhaps owing to employees being more aware of their rights and seemingly being more prepared to issue a claim while still employed whereas traditionally, employees tended to issue a claim once they left employment. Furthermore, the compensation available to employees who are successful in their Protected Disclosure claims is a maximum of 5 years gross remuneration.

The Protected Disclosures (Amendment) Act 2022 (the “2022 Act”) has also undoubtedly had a role in this increase in claims under the 2014 Act. The 2022 Act shifted the burden of proof to the employer, so it is now for the employer to demonstrate that allegedly penalising acts were in fact based on duly justified grounds which means such claims are arguably less burdensome for employees to bring. The 2022 Act also widened the entitlement to seek interim relief from the Circuit Court beyond dismissals to include acts of penalisation whilst in employment, meaning employees need not have been dismissed to bring injunctive proceedings against their employer, they can do so while in situ or in circumstances where the alleged penalisation was less than dismissal.

As outlined above, a further factor is that employees who do not have the requisite length of service to bring a claim under the Unfair Dismissals Act 1977 (the “1977 Act”), as was the case in Breban, can allege they were unfairly dismissed on foot of a protected disclosure to come within the remit of the 2014 Act as there is no length of service requirement. This means that employees who are dismissed during their probationary period could take a claim under the 2014 Act (to include a claim for interim relief) and we have seen a number of such claims. The legal costs associated with these claims are significant, where they involve applications for urgent, injunctive relief.

It is all the more crucial in this context for employers to educate themselves about the potential for claims in this area and to have robust Protected Disclosure policies in place.