Big jump in claims under whistleblowing act

Protected disclosures remain at the forefront of issues for employment-law practitioners, write Joanne Hyde (main picture) and Conor Fynes (small picture) of Lewis Silkin Ireland LLP.

It has been nearly three years since the Protected Disclosures (Amendment) Act 2022 took effect, amending the Protected Disclosures Act 2014, and it is timely to reflect on the key features of the act and the trends emerging since the 2022 amendments.

What is a protected disclosure?

A protected disclosure is a disclosure of relevant information, which, in the reasonable belief of the worker making the disclosure, tends to show a relevant wrongdoing, and which came to the attention of the worker in a work-related context.

The disclosure must be made to the worker’s employer or other legally responsible person, a person prescribed under the act, a relevant EU body, or Government minister.

The act provides that the following matters are considered relevant wrongdoings:

• An offence has been, is being or is likely to be committed,
• A person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or contract for services,
• A miscarriage of justice has occurred, is occurring or is likely to occur,
• The health or safety of any individual has been, is being or is likely to be endangered,
• The environment has been, is being or is likely to be damaged,
• 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,
• An act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,
• That a breach of EU law has occurred, is occurring or is likely to occur, and
• Information tending to show any matter, above, 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.

Grievance or protected disclosure?

The act expressly excludes interpersonal grievances exclusively affecting a reporting person from the meaning of relevant wrongdoing.

A dispute between two colleagues will, in most cases, fall outside the regime.

However, there may be circumstances where certain grievances do fall within the scope of the act.

This could happen, for example, where a grievance concerns a broader workplace issue such as bullying, which may be a health and safety issue. 

Employers should therefore avoid labelling concerns as a grievance too quickly.

Internal triaging and clear procedures will help determine the status of a disclosure.

A disclosure does not have to be formulated as a protected disclosure and, sometimes, concerns are only later asserted to be protected in the context of a penalisation claim.

Reporting channels

Private-sector employers with 50 or more employees must establish, maintain, and operate internal reporting channels and procedures for the making of such reports.

These channels should be designed in a way that encourages workers to first utilise internal channels. 

The act also imposes set timelines.

Employers must acknowledge receipt of a disclosure within seven days and provide feedback within a reasonable period, not exceeding three months from acknowledgement.

Protection and remedies

The past three years have also seen a significant increase in claims lodged with the Workplace Relations Commission (WRC) and the Circuit Court under the act, reflecting increasing awareness of the protections.

Workers who make protected disclosures are protected from penalisation. Penalisation is widely defined, and examples of penalisation include dismissal, demotion, withholding of promotion, reprimand, ostracism, a negative performance assessment, and medical referrals, among others. 

Once a worker has made a protected disclosure, any penalisation is deemed to flow from it, and it is for the employer to rebut that presumption.

There is no service requirement for a worker to bring a penalisation claim to the WRC.

Where penalisation is established, the WRC may award up to five years’ remuneration for employees, or up to €15,000 for workers not in receipt of remuneration from the employer, such as job applicants.

An adjudication officer may reduce an award by up to 25% where the investigation of the relevant wrongdoing was not the sole or main motivation for making the protected disclosure concerned.

Further, a worker who claims to have suffered penalisation wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief within 21 days of the last instance of penalisation.

Where an employee is successful, the injunction will typically continue until the underlying WRC proceedings are determined.

The act also provides that a person who suffers detriment resulting from a disclosure in which the reporting person knowingly reported false information has a right of action in tort against the reporting person.

Where are we heading?

Penalisation claims are likely to remain prominent before the WRC.

Employers should maintain their internal reporting procedures and ensure designated personnel are trained to triage disclosures, follow up promptly, and maintain communication with the reporting person.

Workers should familiarise themselves with the internal reporting procedures and feel safe to speak up where they suspect wrongdoing.