The word “whistleblower” is not used in the Protected Disclosures Act. Instead the Act refers to a “protected disclosure.” A protected disclosure is a particular type of report by a worker which relates to wrongdoing in the workplace.
The Protected Disclosures Act can provide certain protections where you report wrongdoing in the workplace. To qualify for the protections under the Act, you must meet certain conditions. In general, these conditions are that you must be a worker reporting information you obtained in a work related context that you reasonably believe tends to show relevant wrongdoing. Additional conditions apply depending on to whom you are making your report.
A report is assumed to be a protected disclosure until it is established that it is not.
Before you make your report we would recommend that you consider the questions below and you should be able to answer yes to all the following questions before you make your report.
Are you a worker?
Did the information you are reporting come to your attention in connection with your employment or in a work related context?
Do you genuinely believe that the information tends to show one or more relevant wrongdoings?
Would a reasonable person believe that the information tends to shows relevant wrongdoing?
Are you sure that the wrongdoing is not exclusively personal to you (see below for information on personal grievances)?
Have you considered making a report to your employer?
If are reporting to a person who is not your employer, do you satisfy the criteria set out in the Act?
If you are considering making a report to the Protected Disclosures Commissioner, you should also be able to answer yes to the following:
Have you considered making a report to a ‘prescribed person’ e.g. a regulator?
Do you have a genuine belief that the information and any allegations made are substantially true?
Would a reasonable person believe that the information and any allegations made are substantially true?
If your report qualifies as a protected disclosure under the Act, you will have a number of protections which are set out below.
Deciding to report a wrongdoing might be a big decision for you depending on your circumstances. If you wish to discuss it first, Transparency International Ireland offers a confidential information and support service, as well as access to free legal advice on making protected disclosures.
In an employment context, a grievance can be a complaint by an employee to their employer. Sometimes a grievance is a protected disclosure but this is not always the case.
A grievance that is exclusively personal to the employee is unlikely to be a protected disclosure.
Examples of a personal grievance
An employee makes a complaint to their employer about a personal conflict with a co-worker.
An employee makes a complaint to their employer that they were not selected for promotion.
Examples of a protected disclosure
In a hazardous work situation information regarding a failure to provide or wear protective clothing and adhere to health and safety guidelines.
Information about the improper use of funds, bribery and fraud.
Personal employment complaints should generally be dealt with under internal grievance procedures or the employer’s other procedures e.g. dignity at work procedure.
For more information:
If you are dismissed from your job because you made a protected disclosure, you may make a complaint of unfair dismissal to the Workplace Relations Commission and you may also be able to bring a case to the Circuit Court for interim relief.
Normally you have six months to make a complaint to the Workplace Relations Commission, this can be extended for another six months if there is a reasonable cause for the delay.
An application for interim relief to the Circuit Court must be made within 21 days of the date you were dismissed.
For information on where you can seek advice on this and other issues, please see our Resources page.
If you make a protected disclosure, you are protected from civil liability in respect of making the report of wrongdoing except for an action of defamation taken against you.
If a defamation action is taken against you, you may be able to raise the defence of ‘qualified privilege’.
In the event that you are prosecuted for an offence prohibiting or restricting the disclosure of information, you can raise the defence, that at the time of the alleged offence, the report of wrongdoing was or you reasonably believed it to be, a protected disclosure.
If you make a protected disclosure, there is an obligation on the person who receives it to protect your identity. This obligation is subject to exceptions. For example, disclosure of identity is permitted where it is necessary for receipt, transmission or follow up of the report you made.
You can make a protected disclosure anonymously and you will still receive protection under the Protected Disclosures Act so long as you meet all the requirements. However, the person who receives an anonymous report may not be obliged to accept or follow up on it unless they are a prescribed person and they are not prohibited by law from doing so.
The Protected Disclosures Act provides that it is a criminal offence to penalise or threaten to penalise a person or someone who is connected to that person for making a protected disclosure.
If you have suffered penalisation by your employer wholly or mainly for having made a protected disclosure, you may be able to make a complaint to the Workplace Relations Commission and you may also be able to bring a case to the Circuit Court for interim relief.
Normally you have six months to make a complaint to the Workplace Relations Commission, this can be extended for another six months if there is a reasonable cause for the delay.
An application for interim relief to the Circuit Court must be made within 21 days from the last time you were penalised.
For information on where you can seek advice on these and other issues, please see our Resources page.