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            Punishing employers for wrongdoing: what we do in Ireland

            Businesses with workers in Ireland should be aware of the risks posed by whistleblowers  and how to manage this risk within the workplace. 

            Date: 08/04/2019

            Workplace whistleblowing stories are a relatively recent phenomena in Ireland with whistleblowing legislation only being enacted by the Protected Disclosures Act 2014 ("the Act").

             

            The Act

            The purpose of the Act was to protect workers (which are a wider group than employees), from penalisation and/or dismissal for making protected disclosures. The disclosure must relate to an act or omission of the employer. A protected disclosure is a disclosure of relevant information, which in the reasonable belief of the worker shows one or more relevant wrongdoings that came to the attention of the worker in connection with their employment. 

            In order to qualify as a protected disclosure the information must relate to one of the following:

            • the commission of an offence
            • a miscarriage of justice
            • -non-compliance with a legal obligation
            • health and safety threats
            • misuse of public monies
            • mismanagement by a public official
            • damage to the environment
            • concealment or destruction of information relating to any of the foregoing is a protected disclosure.

            It is open to workers to seek injunctive relief in the Circuit Court and awards up to 5 years' remuneration in unfair dismissal claims arising from protected disclosures.

             

            Concerns

            When the Act was enacted some practitioners had concerns given the draconian sanctions permitted. Although we have seen an increase in whistleblowing cases, the increase has not been as substantial as anticipated.

             

            Limits of Protection

            In order to gain the protection of the Act penalisation also needs to have occurred as a result of the protected disclosure. The workers must also prove that the matter complained of is a protected disclosure made "in the course of employment". There is a clear distinction drawn between a personal grievance and a protected disclosure. The Workplace Relations Commission ("WRC") apply the "but for" test, in other words, but for making the disclosure the whistle-blower would not have been penalised. Since June 2018 as a result of the implementation of the EU Trade Secrets (Enforcement, etc) Regulations 2018 it is also necessary for an worker to provide proof that the purpose of the disclosure was to protect the general public interest in order to gain the protection of the Act.

             

            Learning points

            Employers can protect their position by correctly evaluating complaints to determine whether they are a grievance or protected disclosures and applying the correct policy. We would advise all employers to have a clear whistleblowing policy and to provide training to managers to ensure they identify and manage these complaints appropriately when received.

             

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