Protected Disclosures

What is a Protected Disclosure?

A protected disclosure is a disclosure of relevant information made by a worker, which they became of aware of in a work related context and which they reasonably believe tends to show a relevant wrongdoing. Making a ‘protected disclosure’ is sometimes called ‘whistleblowing or ‘reporting wrongdoing in the workplace’.

 

Who can make a protected disclosure?

The Protected Disclosures Act applies to all workers in the public and private sector. . The word “worker” is interpreted widely and includes individuals who are or were:

  • Employees
  • Agency workers
  • Contractors
  • Trainees
  • Volunteers
  • Board members
  • Shareholders
  • Job applicants

 

Who can I make a protected disclosure to?   

Protected disclosures can be made to your employer, a prescribed person, to a Government Minister, to the Protected Disclosures Commissioner, to certain advisors and to other persons. Different conditions apply depending on who you make the report to and you should check that you satisfy the relevant conditions in the Protected Disclosures Act before you make your report.

You can read more at How do I report wrongdoing?

 

If I make a protected disclosure will my identity be protected?

If you make a protected disclosure, the person who receives it is obliged to protect your identity from disclosure unless that person reasonably considers that disclosure may be needed for receipt, transmission or follow up on your report. There are some exceptions to this protection. For example, there may be circumstances where disclosure is required by law.

 

Will I face legal action for making a protected disclosure?

In general, legal action cannot be taken against a person for making a protected disclosure. However, this does not apply to defamation proceedings. If you make a protected disclosure and defamation proceedings are taken against you, you will be able to use the defence of “qualified privilege.”

Also if, when making a protected disclosure, you disclosure information which is prohibited or restricted and you are prosecuted for it, it is a defence to show that you reasonably believed that you were making a protected disclosure when you disclosed the information.

It is important to seek advice and guidance including legal advice before making a protected disclosure.

 

What can I do if I am badly treated by my employer as a result of making a protected disclosure?

The Protected Disclosures Act makes it an offence to penalise, threaten penalisation, or cause or permit any other person to penalise or threaten penalisation against a person for making a protected disclosure. Penalisation is another word for mistreatment.

If you believe you may have been penalised, you should seek some guidance or advice on your options.

There are legal options available to you to address this issue. For example, you may be able to lodge a complaint of penalisation with the Workplace Relations Commission and/or you may be able to seek relief from the Circuit Court. Time limits apply to these types of relief so you should seek advice on your options as soon as possible.

 

How is a Protected Disclosure different from a grievance or a complaint?

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.

It is important to get advice on your circumstances to help you assess whether your report is an exclusively personal grievance.

 

Where can I get guidance on my options if I see wrongdoing at work?

'Transparency International Ireland operates a confidential helpline, and provides access to free legal advice on making protected disclosure through Transparency Legal Advice Centre. The Helpline can provide free referrals for professional counselling on request Transparency International Ireland (TI Ireland) and the Irish Refugee Council have launched of a joint project titled ‘Speak Up Safely – Support for Vulnerable Workers’. They aim to ensure that vulnerable workers, including asylum seekers and migrant workers, can speak up about unsafe working conditions with the benefit of guidance on their rights and access to free legal advice’.

 

What can I do if I believe my concern has not been investigated properly?

If you have made a report to your employer and you don’t believe that the report is being handled appropriately, you may wish to consider reporting to a prescribed person.

If you unsure who the prescribed person is for your report, you may be able to report to the Protected Disclosures Commissioner who will identify the appropriate person for your report. If you are employed in a public body, you may be able to report to the relevant Minister who will transmit the report to the Protected Disclosures Commissioner who will identify the appropriate person for your report.

If you feel that the prescribed person is not handling your report appropriately, you may wish to raise your concerns in writing with that person.

If you are still concerned or if you feel that you cannot raise your concerns, you may wish to consider reporting to a person beyond those mentioned in the Protected Disclosures Act. Under the Act, there are circumstances where you can report to an other person, e.g. a journalist. There are particular conditions for making this type of report and reporters should seek advice and guidance on their options before taking any action.   

You may also wish to consult a legal advisor for advice on any other legal options available to you. 

 

The Office of the Protected Disclosures Commissioner

 

What does the Protected Disclosures Commissioner do?

The Protected Disclosures Commissioner receives reports of work-related wrongdoing from workers, prescribed persons and from Ministers and sends that report to the most appropriate person to deal with. Where the Commissioner considers that there is no appropriate person, the Protected Disclosures Commissioner will accept the report.  

 

How do I report wrongdoing to the Protected Disclosures Commissioner?

If, having considered the options available to you, you do not know who to contact about your report or if you are unsure of who to contact about your report, you can write, call or email us - Contact Us. We will send your report to the Appropriate prescribed person or other suitable person.

 

What can I expect to happen after I have sent my report to the Protected Disclosures Commissioner?

We will issue a written acknowledgement within 7 days. If you do not want receive an acknowledgement you can ask us not to send one.  

Within 14 days we will forward your report to the person the Commissioner considers appropriate to handle your report which may be a prescribed person or, if there is no appropriate prescribed person, an other suitable person.  This may include your employer in limited circumstances and if this is a concern for you please let us know. Our main role is to ensure your report is sent to the appropriate person to handle your report.  We will not consider whether your report qualifies for the protections under the Protected Disclosures Act.

If you have any questions about what will happen once a report is sent to the Commissioner, you can contact our office and a member of staff will give you information on our processes.

 

Will my identity be shared with a third party?

When we send your report to the person we have identified to handle your report , we will include your full report including your name and contact details. We will send your report of wrongdoing to the most appropriate organisation. We will include your name and details.  We will not check if your report qualifies for protection before we send it.  We will contact you before we send on your report.

Prescribed Persons and other suitable persons who receive reports from the Commissioner are obliged to protect the reporter’s identity from disclosure under section 16 of the Protected Disclosures Act.

 

Will OPDC protect my identity if I make a report to them?

The role of the Office of the Protected Disclosures Commissioner (OPDC) is to forward reports of work-related wrongdoing to the most appropriate body for its initial assessment and follow-up.  In certain circumstances, the Protected Disclosures Commissioner will consider a report of wrongdoing and follow it up if no other appropriate organisation can be identified.
 
In order to be fair to all parties involved, and to help ensure a fair process, the OPDC does not comment on any particular disclosure it may have received.  Furthermore, under sections 16(1) and 16A(1) of the Protected Disclosures Act, the Commissioner is required to protect the identity of the person making the disclosure. Therefore, we are not in a position to confirm whether or not reports are received from any particular party or parties, or about any particular party or parties.
 
More information on the OPDC is available on our website www.opdc.ie.

 

‘Prescribed Persons’ and ‘other suitable persons’

What is a prescribed person?

Under the Protected Disclosures Act, certain persons have been designated as persons who can handle reports about wrongdoing within a particular subject matter.  In general, ‘prescribed persons’ have regulatory functions in the area which are the subject of the allegations. Examples are the Central Bank, the Health and Safety Authority and the Data Protection Commission. You can get a full list of prescribed persons by sector on gov.ie. This list will help you find the right person or body to report to.

 

Is my organisation a ‘prescribed person’?

If you are unsure as to whether your organisation is a prescribed person please review S.I. No. 367/2020 - Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020. A prescribed person is obliged to establish specific reporting channels and procedures for receiving reports under the Protected Disclosures Act.

 

When will a prescribed person receive a report from the Protected Disclosures Commissioner?

A prescribed person will receive a report from the Protected Disclosure Commissioner if the Commissioner identifies that person as the appropriate prescribed person for that report.   

 

What is an ‘other suitable person’?

There is no list of ‘other suitable persons’. ‘Other suitable persons’ are identified by the Protected Disclosures Commissioner in accordance with the Protected Disclosures Act.

 

When will an ‘other suitable person’ receive a report from the Protected Disclosures Commissioner?

The Protected Disclosures Commissioner may send a report to an ‘other suitable person’, where no appropriate prescribed person can be identified, or where the Commissioner considers that transmission to the appropriate prescribed person creates a risk of serious penalisation, or that evidence of the relevant wrongdoing would be concealed or destroyed.

 

What if a ‘prescribed person’, or ‘other suitable person’, does not agree with the decision of the Protected Disclosures Commissioner to send a report to them?

A ‘prescribed person’ or ‘other suitable person’ may notify the Protected Disclosures Commissioner that it does not consider the report to be within its remit (statutory or otherwise) within 7 days of the date of transmission The notification will be considered and the Commissioner will issue a decision within 14 days of the notification.  The Commissioner’s decision is final.

 

Can a prescribed or other person send a report received from the Protected Disclosures Commissioner back to the Commissioner?

No, reports from the Protected Disclosures Commissioner cannot be sent back to the Protected Disclosures Commissioner. A person can, however, notify the Protected Disclosures Commissioner that it does not consider the report received to be within its remit. See question above.

 

Does the Protected Disclosures Commissioner have any further role once the report is sent to the ‘prescribed person’ or ‘other suitable person’?

No. Once the report is transmitted the Commissioner’s role is complete and no further action will be taken.

 

What is the next step a ‘prescribed person’ or ‘other suitable person’ should take once they receive a report? 

A person who receives a report from the Protected Disclosures Commissioner must acknowledge receipt to the reporting person not more than seven days after receipt. Day one is the day the report is received.

The report does not have to be acknowledged if the reporting person explicitly requests that no acknowledgment be received or if the person who receives the report reasonably believes that acknowledgment would jeopardise the protection of the reporter’s identity

 

Will the reporting person be informed where their report was sent?

Yes. The reporting person will be informed of the actions taken by the Protected Disclosures Commissioner as soon as is practicable.

 

After a report is acknowledged, what is the next step?

After the report is acknowledged, a prescribed person, or other suitable person, must carry out an initial assessment of the report.  This includes seeking further information from the reporting person, if required, as to whether there is prima facie evidence that a relevant wrongdoing may have occurred.

 

Does the prescribed person or other suitable person have to provide feedback to the reporting person?

Yes, they must provide the reporting person with feedback on their report within a reasonable time period. This should be no more than three months from the date of the original acknowledgment, and thereafter every three months if the reporter requests this in writing request.

There are circumstances where the three-month period may be extended to six months.

 

Does the other suitable person have any other obligations?  

An ‘other suitable person’ must designate at least one member of staff (the designated person) to be responsible for handling the report received and in particular for follow-up, and for maintaining communication with the reporting person for the purpose of providing feedback and, where necessary, requesting further information from that reporting person.

 

Is there an obligation on the prescribed person or other suitable person to protect identities of the parties involved?

Persons are obliged under section 16 and 16A of the Protected Disclosures Act to protect the identity of the reporting person and the person concerned.  The ‘person concerned’ is the person who is the subject of the report.