Q&A on the Protected Disclosure Act 2014Friday, 10 October 2014
What is a Protected Disclosure?
Q1. What’s the difference between a general employee grievance and a protected disclosure? Could a complaint of bullying come within the definition of a “protected disclosure” under the PDA?
This is a difficult question as a general grievance can also be a protected disclosure. The Protected Disclosures Act (“PDA”) confirms that a “protected disclosure” is a disclosure made by a worker, in the manner specified in the PDA, of information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with the worker’s employment. An exhaustive list of eight “relevant wrongdoings” is contained in section 5(3), paragraph (a) to (h). The equivalent UK legislation has a requirement that the disclosure made is “in the public interest” but there is no similar “public interest” requirement in the Irish PDA.
A complaint of bullying could be deemed to fall under paragraph (b) - a disclosure of information tending to show that a person has failed, is failing or is likely to fail to comply with any legal obligation. In this case the obligation is to provide a safe place of work, which is contained in the Safety, Health and Welfare at Work Act. It could also be viewed as falling under paragraph (d) - information tending to show that the health or safety of an individual has been, is being or is likely to be endangered. Many general grievances could also fall under one of the eight relevant wrongdoings. This will be a very difficult call to make in many cases and will be of particular concern to public sector employers who must keep a record of all public disclosures for the purposes of compiling an annual report.
Q2. Is the Act not just a lazy worker's charter? e.g. 'you made me work when I was tired' could be a whistleblowing disclosure on ‘Health and Safety’ grounds?
Making an employee work when he or she is tired would be unlikely to be a protected disclosure but a complaint that employees are regularly working 60 hour weeks could arguably be a protected disclosure on the basis that the health or safety of any individual could be endangered by such practices. It could also be argued that having an employee work such long hours is a failure to comply with a legal obligation – to ensure that employees do not exceed the maximum 48 hour working week (subject to certain averaging provisions) contained in the Organisation of Working Time Act.
Q3. If an Irish-based employee raises an issue of unlawful acts outside Ireland might it constitute a protected disclosure?
Yes. The PDA states that it is immaterial whether the unlawful acts occur in Ireland, or elsewhere, and whether the law applying to it is that of the Irish State or that of any other country or territory.
Confidentiality & Anonymous Reports
Q4. Are anonymous reports required to be acted upon? How should you best deal with it?
The PDA places no requirement on an employer to act on any disclosures, anonymous or otherwise. The PDA simply introduces protections for workers who make protected disclosures. Anonymous disclosures were excluded from the definition of a protected disclosure in the draft heads of the bill leading to the PDA but are not excluded (or expressly included) in the PDA.
However, if you do not act on a disclosure then it may give the worker who made the initial disclosure a legitimate basis to complain to outside bodies and/or the media that nothing has been done in relation to the initial disclosure and gain protection under the PDA. On this basis, we recommend that all disclosures are acted upon and the actions taken are recorded. If the allegation is anonymous it may not be possible to undertake a full investigation but, if that is the case, the allegation should still receive some form of preliminary examination and a record made of why a full investigation could not be undertaken.
Q5. There seems to be a conflict between the obligation to keep the whistleblower's identity confidential and natural justice and the right to know one's accuser?
Yes, there is a conflict and this will be a very difficult issue for organisations. Section 16 of the PDA provides for the protection of the identity of the worker making the disclosure, but this is not absolute. For instance, disclosure of identity can occur where:
(i) the person to whom the protected disclosure was made shows that he or she took all reasonable steps to avoid so disclosing any such information,
(ii) the person to whom the protected disclosure was made reasonably believes that the person making the disclosure does not object,
(iii) the person to whom the protected disclosure was made reasonably believes that disclosing any such information is necessary for —
(a) the effective investigation of the relevant wrongdoing concerned,
(b) the prevention of serious risk to the security of the State, public health, public safety or the environment, or
(c) the prevention of crime or prosecution of a criminal offence,
(iv) the disclosure is otherwise necessary in the public interest or is required by law.
A failure to comply with the above confidentiality requirement is actionable by the person making the disclosure if that person suffers any loss by reason of the failure to comply.
The challenge here is to determine when it is appropriate to disclose a person’s identity and when it is not. Is it necessary to disclose identity for the effective investigation of the relevant wrongdoing? This may depend to a great extent on the nature of the allegation and the wrongdoing concerned. The decision may be swayed by the concern that the decision maker personally could face a claim under section 16 for any loss incurred as a result of disclosing the person’s identity.
If the identity of the person making the allegation is not disclosed it may make it very difficult to investigate the offence. An accused person may have a valid basis not to engage with an investigation and answer any questions where the identity of the person making the allegation is not disclosed. It is a general principle of fair procedures that an accused person has the right to confront his accusers, although there can be a question of balancing competing rights. It would be difficult to ensure that this right is respected without disclosing the identity of the person making the allegation / protected disclosure and it would also be very difficult to dismiss an individual on the basis of “anonymous” such allegations.
Public Sector Bodies
Q6. When are we likely to see the public sector guidance from the Minister?
The PDA contains specific obligations on public sector employers to “establish and maintain procedures” and also to produce an annual report. There is very little detail in the PDA on either issue and this was a cause of some concern amongst the public sector employers represented at the seminar. We have made enquiries with our contacts at the Department of Public Expenditure and Reform but it is still unclear when we can expect to receive the public sector guidance from the Minister. We hope it will be published soon and we will be providing a bulletin to clients as soon as it is published.
Q7. Are public bodies required to promote their policies and procedures e.g. hold open meetings in house etc, rather than just make the policy available?
Section 21 of the PDA requires public bodies to “establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures”. While there is no specific obligation to take steps to provide training or inform staff members in relation to those policies, our view is that such steps could be necessary to “establish” the policy within an organisation and are likely to be relevant when an employer is faced with a claim under the PDA. Like any employment policy, employers should ensure that staff members are fully apprised of the contents of the protected disclosures policy, and ensure that those in positions of responsibility know what to do in the event that a protected disclosure is made to them. This may avoid claims under the PDA and also make it easier to convince a Court or Tribunal that the actions taken were reasonable in the circumstances.
Q9. I’m in the private sector, so am I required to introduce a whistleblowing policy?
Private sector employers are not specifically required to introduce policies by the PDA, but it is advisable that all employers introduce a protected disclosure policy (or amend the one they already have in place if it does not comply with the PDA). The policy needs to encourage employees to make disclosures internally, as opposed to making them to the media, and it is likely that the existence of a policy will be very important when an employer is defending claims related to the PDA.
Q10. Should the policy expressly include a definition of workers and others covered by the policy beyond employees?
In any policy, it is important to clearly state who falls within its scope. It should be noted that the definition of “worker” contained in the PDA is very broad, and includes employees, agency workers, persons engaged through contracts for services, and certain work experience students and interns.
Causes of Action
Q11. Why should someone choose the detriment civil tort route over penalisation?
Access to the penalisation provisions contained in the PDA is restricted to “employees”, while any “worker” is entitled to bring a claim in tort where they have suffered detriment as a result of them having made a protected disclosure. It is worth noting that this statutory cause of action can be brought against the person “by whom the detriment is caused” which will cause concern amongst decision makers that they could be found personally liable in some circumstances. The individual perpetrator of the detriment could potentially be sued, as well as the organisation.
Q12. How long might a prospective candidate have to make a claim they didn't get a job because they had previously made a protected disclosure and who might be held liable?
The normal limitation period of six years will apply to the new statutory cause of action in tort “for suffering detriment because of making protected disclosure.” The person who caused the detriment will be liable. Depending on the circumstances, this could potentially be the prospective employer.
Q13. Can Rights Commissioners, EATs, soon-to-be Adjudicators etc hear interim relief claims or must they all go via the circuit court? Does this not run counter to the thrust of the Workplace Relations Bill and the desire to streamline employment disputes fora? Employment Tribunals in NI have no difficulties in hearing interim relief cases.
An application for interim relief under the PDA can only be made to the Circuit Court and, yes, this does run counter to the thrust of the Workplace Relations Bill. The PDA provides the Circuit Court with this new power to hear interim relief applications while the Workplace Relations Bill removes the right to appeal a decision of the Employment Appeals Tribunal under the Unfair Dismissals legislation to the Circuit Court.
If you have any questions in relation to the Protected Disclosures Act, or have any queries in relation to the information outlined above, please contact Michelle Ní Longáin, Emmet Whelan or Donal Hamilton from our Employment Law Team.