The Minister for Finance and Public Expenditure and Reform, Mr Paschal Donohoe, T.D., and the Minister of State for Public Procurement, Open Government and eGovernment, Mr Patrick O’Donovan, T.D., today published a Statutory Review of the Protected Disclosures Act 2014.

The purpose of the Act is to protect workers from retribution from their employer or any other third party as a result of raising concerns about wrongdoing in the workplace.

The Act was signed into law on 8 July 2014 and, in accordance with Section 2 of the Act, the Minister for Public Expenditure & Reform is obliged to carry out a review of the operation of the Act and report to the Oireachtas no later than four years after this date.

A public consultation held during the course of carrying out the review elicited 25 submissions from a variety of public bodies, interest groups and members of the public and these have also been published.

The Review considers international developments, including a comparative analysis with legislation in other countries. It shows that the Act has been viewed as setting a positive example internationally. It also sets out some early results of the implementation of the Act, including data obtained from public bodies and a survey undertaken by Transparency International Ireland.

The Review shows that the Act has had a broadly positive outcome, but that further awareness raising about the protection it offers to workers and the obligations it places on employers is needed. The Review highlights some implementation issues and challenges arising, most of which are addressed in the Review and some of which could be addressed through guidance.  On foot of this, the Government has decided to set up, by October, an interdepartmental committee in order to address some of the issues raised in the course of the Review.

It is not proposed to change the legislation at this time. The European Commission has recently (April 2018) published a proposal for directive for the protection of whistleblowers. Accordingly, it is considered prudent to await the outcome of the negotiations on the EU Directive before making any proposals for legislative changes that might be necessary.

Minister Donohoe said, “I am pleased to lay this statutory review of the Protected Disclosures Act before the Oireachtas. This legislation was enacted as part of a wider set of government and legislative reforms implemented in recent years to support and strengthen integrity, fairness and openness in Irish society, including the extension of the Freedom of Information Act and the Regulation of Lobbying Act. It is timely to review the operation of the Act in the context of the package of measures the Government is currently working on aimed at strengthening Ireland’s response to corruption and white-collar crime.”

Minister Donohoe went on to say, “Overall, I think the review shows that the Act has delivered a positive benefit for Irish society. We can see that workers are more confident to speak up about possible wrongdoing in the workplace in the year-on-year increases in the number of disclosures being made. A number of landmark cases at the WRC and the Labour Court show that the Act is doing its job of protecting workers from reprisals. Of course, the Review has also brought to light a number of implementation issues and the next step in this process will be to work to see how these can be addressed.”

Minister of State O’Donovan added, “I also welcome the publication of this Review and the opportunity it has brought to take stock of its impact, to see how it is working in practice and to see what issues and challenges it presents for workers and employers. Overall, as Minister Donohoe has said, I think the impact of the Act has been very positive. The Act has also influenced similar legislation in other countries and is seen internationally as the “gold standard” for whistleblower protection legislation.”

Both Ministers also conveyed their thanks and appreciation to those who took the time make submissions to the public consultation on the review of the Act. They also paid tribute to the courage of those workers who have spoken up and brought to light concerns about wrongdoing in the workplace.

The Statutory Review along with the submissions received during the public consultation process are available at here.

Notes for Editors

About the Protected Disclosures Act

The Protected Disclosures Act 2014 provides robust statutory protections for workers in both the public and private sectors against the real or potential penalisation by their employers where they have brought concerns about possible wrongdoing in the workplace to light.

The Act seeks to safeguard the broadest possible range of workers – including employees, contractors and agency workers – from being subject to detriment for having made a protected disclosure.

It provides for a “stepped” disclosure regime in which a number of distinct channels are available – internal, “regulatory” and external – through which the worker can make a protected disclosure.

Three forms of protection are available under the Act:-

  • Protection from the retributive actions of an employer
  • Protection from civil liability
  • Protection from victimisation by a third party

In the event that a worker is penalised for having made a protected disclosure a claim for redress through the normal industrial dispute resolution mechanisms may be made. Redress is available for penalisation (which is widely defined in the Act) falling short of dismissal and, in the case of a dismissal, under the Unfair Dismissals Acts regardless of the length of service. In the case of a dismissal, a provision is included in the Act that allows workers to make a claim for interim relief to the Circuit Court.

In order to avail of the protections a worker must have a reasonable belief that the information to be disclosed shows or tends to show one or more of the following that:

  • a criminal 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 to which he or she is subject;
  • a miscarriage of justice has occurred, is occurring or is likely to occur;
  • the health and 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, corrupt, or irregular use of funds or resources of a public sector body has occurred, is occurring or is likely to occur;
  • an unlawful, corrupt or irregular use of public monies has occurred, is occurring or is likely to occur;
  • an act, omission, or course of conduct by a public official is oppressive, improperly discriminatory, or grossly negligent, or constitutes gross mismanagement;
  • information tending to show that any matter falling within any one of the preceding paragraphs, whether alone or in combination has been, is being or is likely to be deliberately concealed.

About the Review of the Act

The Protected Disclosures Act was signed into law on 8 July 2014 and section 2 of the Act provides that the Minister shall, not more than 3 years after enactment, commence a review of the Act and, not more than 4 years after enactment, make a report to each House of the Oireachtas and of the findings made on the review and the conclusions drawn from the findings.

A public consultation was launched on 17 August 2017 and closed on 10 October 2017. This elicited 25 submissions from public bodies, interest groups and members of the public.

While a number of issues were raised in the course of the Review, the guiding principles which underpin the Act were generally accepted. The issues which were raised mainly concerned implementation and procedural matters.  In the cases where legislative change was recommended, they generally concerned issues which had been examined in detail at the time of the drafting of the legislation and its passage through the Oireachtas, and the Act as it exists reflects the result of that process.

The report sets out responses to the issues raised in the course of the Review, and proposes to make some additional guidance. It concludes that no legislative amendments should be made at this time, but notes that the EU Commission Directive, which will be negotiated over the next year, is expected to result in amendments to the Act in the context of the transposition. Any further amendment to the Act would be more appropriately considered in the context of the outcome of those negotiations. The Review makes it clear that, while awareness of the Act is increasing among workers and employers, it needs to increase further.

About the EU Directive on Whistleblowing

In April 2018, The EU Commission published a “Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law”, which is essentially an EU-wide whistleblower protection measure.

Ireland is one of only 10 EU Member states that currently have comprehensive whistleblower legislation in place, and the proposal mirrors the Irish legislation in many respects.

In this regard, Ireland is well placed and is considered a leader in the negotiations which have just commenced on the proposal. Nonetheless, there are differences in the Commission’s approach in some respects, and the final Directive is likely to require some amendments to the Protected Disclosures Act as part of its transposition.

Contacts

Deborah Sweeney, Press Adviser to Minister Donohoe: 086 858 6878

Ben Sweeney, Press Officer, Department of Public Expenditure and Reform: 085 806 9313