Protection of Whistleblowers

The Protected Disclosures Act 2014 as amended by the Protected Disclosures (Amendment) Act 2022, provides a statutory framework for the protection of workers who raise concerns about relevant wrongdoing in their workplace from dismissal, penalisation or other sanctions by their employers.

Making a protected disclosure is also known as “whistleblowing”.

What is a protected disclosure?

A protected disclosure is defined by section 5 of the 2014 Act as a disclosure of information by a worker, which in their reasonable belief, tends to show one or more relevant wrongdoings, which came to the worker’s attention in a work-related context and is disclosed in the manner outlined in the Act as amended

Actions that constitute relevant wrongdoings under the Act include:

• criminal offences;
• failure to comply with any legal obligation (other than one arising out of a worker’s contract of employment or contract for services);
• a miscarriage of justice;
• endangerment of an individual’s health or safety;
• damage to the environment;
• unlawful or improper use of funds or resources by a public body;
• oppressive, discriminatory or grossly negligent behaviour or gross mismanagement by a public body;
• breaches of European Union law set out in the 2022 Act linked above;
• concealment or destruction of evidence relating to any of the above wrongdoings.     

The Act allows for disclosures to be made about past wrongdoings, current wrongdoings, and wrongdoings that are likely to occur in the future.

Matters concerning interpersonal conflict between the worker and another colleague, or their employer, does not generally constitute a wrongdoing under the Act.  Such conflicts should be dealt with through the internal grievance procedure provided for by the employer. 

Who is protected under the legislation?

A “worker” is defined by the Act as an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes:

• employees and former employees,
• persons who provide or provided services to another party under contract,
• agency and former agency workers,
• board and former board members (including non-executive members),
• shareholders and former shareholders,
• trainees and former trainees,
• volunteers and former volunteers,
• job applicants,
• individuals involved in pre-contract negotiations, and
• members and former members of the Defences Forces (including the Reserves).

The Act also protects workers who make a disclosure by way of an anonymous report.  If a worker makes an anonymous report and is subsequently identified and penalised for doing so, for the purposes of the Act, that worker will be considered to be a worker who made a protected disclosure and is therefore entitled to the full protections of the Act.

Remedies against penalisation for making a protected disclosure

Section 12 of the Act prohibits an employer from penalising or threatening to penalise an employee for having made a protected disclosure.  Penalisation is defined by the Act as any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and includes:

• suspension, lay-off or dismissal;
• demotion, loss of opportunity for promotion or withholding of promotion;
• transfer of duties, change of location or place of work, reduction in wages or change in working hours;
• the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty);
• coercion, intimidation, harassment or ostracism;
• discrimination, disadvantage or unfair treatment;
• injury, damage or loss;
• threat of reprisal;
• withholding of training;
• a negative performance assessment or employment reference;
• failing to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that they would be offered permanent employment;
• failing to renew or early termination of a temporary employment contract;
• harm, including to the worker’s reputation, particularly on social media, or financial loss, including loss of business and loss of income;
• blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry;
• early termination or cancellation of a contract for goods or services;
• cancellation of a licence or permit; and
• psychiatric or medical referrals.

If an employee suffers penalisation as a result of making a protected disclosure, the employee can apply to the Circuit Court for interim relief within 21 days immediately following the date of the last act of penalisation by the employer.  An “employee” for the purposes of section 12 of the Act also includes trainees, volunteers, and job applicants.

A claim for penalisation may also be brought before the Workplace Relations Commission within 6 months of the penalisation complained of. Where there is ‘reasonable cause’ a complainant may ask the Adjudication Officer to extend the deadline by an additional 6 months.

In a claim for penalisation before the Workplace Relations Commission, the burden of proof falls to the employer, and penalisation will be deemed to have been a result of the reporting person having made a protected disclosure, unless the employer proves that the act or omission was justified on other grounds.

Board members and shareholders who suffer penalisation as a result of making a protected disclosure cannot make a complaint to the Workplace Relations Commission but may instead seek redress through the civil courts.

Please note that you are responsible for meeting litigation deadlines and should act promptly and seek advice as required. Contact WRC Information and Customer Services if information is required.

Please note that if a whistleblower decides that they meet the statutory criteria for reporting a relevant wrongdoing to the WRC Director General as a ‘Prescribed Person’ under the external reporting channel described below, this is separate to submitting an employment complaint to the WRC for adjudication. It is important to understand that reporting a matter to the Prescribed Person does not mean that a complaint has been submitted for adjudication by the WRC.

Unfair dismissal

The Act also offers protection to an employee who is dismissed from their employment as a result of making a protected disclosure.  Such a dismissal will be regarded as unfair and the employee may take a claim to the Workplace Relations Commission under the Unfair

Dismissals Acts 1997 – 2015 for a remedy.  If the claim for unfair dismissal is successful, the Workplace Relations Commission may direct a course of action: order the re-instatement of the person in the same position they were in before the dismissal; re-engagement in the organisation; or compensation of up to five years’ pay as is just and equitable having regard to all the circumstances of the case.  

Where a person is not in paid employment e.g., a job candidate who is found to have been penalised for making a protected disclosure the maximum compensation the WRC can award is €15,000.

A person’s motivation for making the protected disclosure may affect the level of compensation awarded.  If the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25% less than the amount it may otherwise have been.

Further information and advice

Further information and advice on protected disclosures can be found on:

Making Protected Disclosures to Prescribed Persons pursuant to the Protected Disclosures Act 2014 (‘External Channel Disclosures’)

Making a Protected Disclosure to a Prescribed Person

A whistleblower should start by making a ‘protected disclosure’ to their employer or other responsible person such as a regulator if possible. However, protected disclosures can be made to a prescribed person under section 7 of the 2014 Act as amended.  A prescribed person is a person who is nominated by the Minister for Public Expenditure and Reform to receive protected disclosures in relation only to matters that fall within the remit of a particular public body.

If a worker decides to make a protected disclosure to a prescribed person rather than their employer, they must make sure they have chosen the correct person for the wrongdoing they wish to report.

Making a Protected Disclosure to the Workplace Relations Commission

The Director General of the Workplace Relations Commission has been nominated as a prescribed person in the Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2020 to receive complaints in relation to all matters pertaining to the functions of the Workplace Relations Commission or of the Director General under the Workplace Relations Act 2015. 

A protected disclosure to the Workplace Relations Commission should be made in the manner as specified by section 7 of the Act.  A protected disclosure may be made to the Director General if the reporting person objectively reasonably believes that the relevant wrongdoing falls within the description of matters for which the Director General has jurisdiction, (namely “WRC functions”) and that the information disclosed, and any allegation contained in it, is substantially true. 

Please be aware that the WRC is a statutory body, which can only act within the four corners of the Workplace Relations Act 2015, which sets out its functions. The WRC cannot investigate every complaint of wrongdoing. The WRC functions most likely to be relevant here are those of information provision in relation to employment law, referral for possible inspection by independent WRC inspectors who can only investigate a specific range of offences set down in statute, and signposting the whistle-blower on to adjudication or another regulator or the Office of the Protected Disclosure Commissioner.

How do I make a protected disclosure to the Workplace Relations Commission?

A protected disclosure to the Director General can be made orally and/or in writing.  Where a disclosure is made orally, by telephone or through other voice messaging systems, the reporting person may request a meeting with the Director General or a designated person, which will be facilitated within a reasonable period following the making of the request.

It is important that the disclosure includes as much Information as possible about the alleged wrongdoing.  It is recommended that reports should, at a minimum, include the following details:

• that the report is a protected disclosure and is being made under the Protected Disclosures Act 2014 (as amended) and its relevant procedures;
• the reporting person’s name, position in the organisation, place of work and confidential contact details;
• the date of the alleged wrongdoing (if known) or the date the alleged wrongdoing commenced or was identified;
• whether or not the alleged wrongdoing is still ongoing;
• whether the alleged wrongdoing has already been disclosed and if so, to whom, when, and what action was taken;
• information in respect of the alleged wrongdoing (what is occurring or has occurred and how) and any supporting information;
• the name of any person(s) allegedly involved in the alleged wrongdoing (if any name is known and the worker considers that naming an individual is necessary to report the wrongdoing disclosed); and
• any other relevant information.

Some persons may wish to make an anonymous disclosure.  The Workplace Relations Commission will accept and follow-up on any anonymous disclosure received, however, the WRC may be constrained in its ability to investigate the matter in the absence of knowledge of the identity of the reporting person.  Further, not having contact information on the identity of the reporting person may make it difficult or impossible to apply certain procedures, such as keeping the reporting person informed on the outcome of their report.  If the reporting person does not wish to be contacted, they should make this clear in their report to the Workplace Relations Commission.

To make a protected disclosure to the Workplace Relations Commission, please write to:

The Director General
The Workplace Relations Commission
Lansdowne House
Lansdowne Road
Ballsbridge DO4 A3A8

Alternatively, you may use the following phone number or email:

Tel:  01-613 6705

            Or

Email: protecteddisclosure@workplacerelations.ie

Note that whilst voicemails are recorded, phone calls to the WRC Prescribed Person phone line above are not recorded.

Protected Disclosure Procedures

Protected disclosures made to the Director General of the WRC will be dealt with through an independent and autonomous external reporting channel. The reporting channel is run by an impartial person or persons, known as a “designated person(s)”.  Designated persons are appointed by the Director General and are responsible for handling reports and maintaining contact with the reporting person.  Designated persons working on a protected disclosure delegation have been trained in the handling of such reports.  The reporting channel and its procedures are designed and operated in a manner that ensures the completeness, integrity and confidentiality of the persons and information concerned. 

Once a report of a protected disclosure has been received, in accordance with section 7A of the Act, written acknowledgement of the report within 7 days of receipt will be provided, unless the reporting person specifically requests that no acknowledgement is sent, or the Director General reasonably believes that acknowledgment of receipt would jeopardise the protection of the reporting person’s identity.

The reporting person will be kept up to date with the progress of the investigation into their reported disclosure, including being provided with information on the following steps in the process:

Initial assessment

The first step in the investigation of reported disclosures is an initial assessment as to whether there is prima facie evidence that a wrongdoing may have occurred, and that the reported disclosure concerns matters that fall within the remit of the Director General of the Workplace Relations Commission’s responsibility, namely the Workplace Relations Act 2015.

During the initial assessment, the designated person may ask for further information from the reporting person relating to the disclosure.

Conclusion of initial assessment

After carrying out the initial assessment, if the Director General decides that there is no prima facie evidence that a wrongdoing may have occurred or that the matter falls outside his remit, the investigation procedure shall be closed and notification of the decision and the reasons for the decision shall be given to the reporting person, in writing, as soon as practicable. 

An investigation into a reported disclosure may also be closed following an initial assessment if the Director General decides that there is prima facie evidence that a wrongdoing may have occurred, but the wrongdoing is clearly minor and does not require further follow up.

In the case of repetitive reports, the investigation may also be closed if the reported disclosure does not contain any meaningful new information about a wrongdoing compared to previous reports which have since concluded.  In both instances, notification of the decision to close the procedure and the reasons why will be given to the reporting person, in writing, as soon as practicable.

Action taken to address the relevant wrongdoing

After carrying out the initial assessment, if the Director General decides that there is prima facie evidence that a relevant wrongdoing may have occurred, and that the report concerns a matter that falls within the scope of matters for which the Director General has responsibility, the reporting person will be notified of the action taken to address the wrongdoing.

Transmitting the report to a more appropriate prescribed person or the Protected Disclosure Commissioner

Following the initial assessment, if the Director General decides that the disclosure concerns matters not within the scope of his/her jurisdiction, he/she will transmit the reported disclosure to a more appropriate prescribed person, or where there is no such appropriate person, he/she will transmit it to the Protected Disclosure Commissioner. 

Notification of the decision to transmit the report, and the reasons for transmitting the report, will be given to the reporting person, in writing, as soon as practicable.  The designated person will provide notification of the decision to the reporting person.

Feedback

The designated person will provide feedback to the reporting person on their reported disclosure within three months of the date of acknowledgement of receipt, or within six months of the date of acknowledgment in complex cases.  If no acknowledgment of receipt was provided to the reporting person, the designated person will provide feedback within three months from the date of expiry of the period of seven days after the report was made, or within six months in complex cases.

If it appears unlikely that feedback will be provided in the prescribed three-month period, the designated person will write to the reporting person as soon as practicable to inform them of the extension of time for providing feedback.   If a reporting person wishes, they can request, in writing, that further feedback be provided by the designated person at the interval of every three months until the report is closed.

Final Outcome of Investigation

The reporting person will be informed, in writing, of the final outcome of any investigation trigged by the report of a protected disclosure.

As set out above, please note that if a whistleblower decides that they meet the statutory criteria for reporting a relevant wrongdoing to the WRC Director General as a ‘Prescribed Person’, this is separate to submitting an employment complaint to the WRC for adjudication.

It is important to understand that reporting a matter to the Prescribed Person does not mean that a complaint has been submitted for adjudication by the WRC. The whistleblower is still responsible for meeting any litigation deadlines and should act promptly. Contact WRC Information and Customer Services if information is required or refer a complaint for adjudication by the WRC here: Workplace Relations Complaint Form

Confidentiality of the reporting process

The external reporting channel is operated in a way that ensures the confidentiality of the identity of the reporting person, and any other person concerned, as well as the information that has been disclosed.  

The identity of the reporting person, or any information which may identify them, will not be disclosed to any person other than those necessary for the processing or transmission of the report without the consent of the reporting person. 

There are a limited number of circumstances in which the consent of the reporting person is not necessary prior to disclosing their identity or information contained within the report.  These exceptions are outlined in section 16 of the Act and include:

• where the disclosure is a necessary and proportionate obligation imposed by European Union law or Irish law in the context of investigations or judicial proceedings;
• where the person to whom the report was made or transmitted -
  • shows that they took all reasonable steps to avoid disclosing the identity of the reporting person, or
  • the person reasonably believed that disclosing the identity of the reporting person or any such information is necessary for the prevention of serious risk to the security of the State, public health, public safety, or the environment; or
• where the disclosure of the person’s identity is required by law.

If the identity of a reporting person is disclosed as an exception, the person will be notified in writing before their identity, or the information concerned, is disclosed and the reasons for disclosing them.  Notification will not be given if doing so would jeopardise:

• the investigation into the alleged wrongdoing;
• the prevention of serious risk to the security of the State, public health, public safety, or the environment; or
• the prevention of crime or prosecution of criminal offences.

Data Protection and Protected Disclosures

The processing of all personal data provided in the reported disclosure will be processed in accordance with data protection law, including the General Data Protection Regulation.  The Act provides a lawful basis for the collection and processing of personal data and requires the WRC to keep certain records and refer reports onto other public bodies in certain circumstances. However, any personal data that is not relevant to the handling of a specific report will not be collected or if collected accidentally, will be deleted without delay.

In accordance with section 16B of the Act, the rights of data subjects can be restricted to the extent necessary and proportionate for the purposes of safeguarding the general public interest, the protection of the data subject or the rights and freedoms of others.  Rights can also be restricted to the extent, and for as long as is necessary, to prevent and address attempts to hinder reporting or to impede, frustrate or slow down follow-up, in particular investigations, or attempts to find out the identity of reporting persons.

The restrictions also apply where it is necessary and proportionate to prevent the disclosure of information that might identify the reporting person, where such disclosure of identity would be contrary to the protections of the Act; or where exercise of the right would prejudice the effective follow-up, including any investigation, of the relevant wrongdoing.

Offences and Penalties

It is important to note that anyone who hinders a worker in making a report or brings vexatious proceedings or breaches the duty of confidentiality commits an offence under the Act.

It is also important to note that a reporting person who makes a report containing any information that he or she knows to be false commits an offence.

The following flowchart provides an overview of how the WRC external channel for reporting protected disclosures to the WRC operates.
You can click here for a larger sized accessible PDF version of the flowchart.