In his Article “The – “WHISTLEBLOWERS” – Protected Disclosures Act 2014 – For Good or for Bad?” Brian Morgan, Litigation and Employment Law Solicitor with Morgan McManus Solicitors explains the provisions of the Protected Disclosure Act 2014, opining that it can be used for good or bad. Here he advises employers as to how they should act in the event that a worker makes a Protected Disclosure.
It is important to read my Article to get a proper understanding of the circumstances in which a worker can make a Protected Disclosure about a wrongdoing in the workplace and avail of certain statutory protections, in particular availing of the right to sue one`s employer for Unfair Dismissal where an employee believes that he was dismissed for making such a Disclosure. An employee could be awarded up to 5 years’ salary by the Workplace Relations Commission (WRC) where it is found that he was unfairly dismissed in those circumstances. This could destroy a business, particularly where the employer may not have Insurance Cover for such a Claim. The employee could also have the option of applying for Interim Relief through the Civil Courts under the legislation where the employee claims to have been dismissed by his employer wholly or mainly for having made a Protected Disclosure, thus obtaining a Court Order re-instating him to the workplace pending the WRC Hearing. All of this has been covered in detail in my substantive Article.
What should an Employer do under the Protected Disclosure Act?
Create a “Protected Disclosure” Policy
Although the term ‘whistleblowing’ is often associated with high profile cases in the media, a disclosure may be made in any industry at any level. Fraud and business malpractice can cause major damage to a company’s reputation and could also give rise to Criminal Prosecutions in certain circumstances.
It is imperative therefore that the employer should create a Protected Disclosure Policy. Under this Policy, employees should clearly understand what they should do if they come across relevant wrongdoing, as defined in Section 5(2) of the Act, in their place of work. The company should outline in the Policy that they take such wrongdoing seriously. How employees can raise a concern in the workplace should also be stated and the relevant contact person’s details should be included in the Policy.
Having a procedure in place also aims to prevent staff from discussing sensitive information with unsuitable parties. In turn the company will treat disclosures in confidence and will not reveal the identity of the person making the allegation, so long as it does not hinder or frustrate any investigation. It is important to state in the Policy that the company will not tolerate the victimisation of any person who discloses a wrongdoing under the procedure and that victimisation will be treated as a disciplinary offence.
Implementing the Policy
Employees need to be advised that “whistleblowing” is in place to protect them, the company and, at times, the public interest. They also need to be assured that the Policy is fully supported by the management of the company. Management must take all disclosures seriously and when necessary undertake an investigation into the matter. It is also important for employees to be aware that there will be no negative consequences for making Protected Disclosures.
Ensure that, once the Policy has been created, that there is a proper Induction process; that workers are informed in writing of the Policy, are brought to a meeting where the terms of the Policy are explained and that subsequently, as in all Induction processes, the worker signs an Acknowledgment to confirm that they understand the terms of the Policy.
What if my employee makes a Protected Disclosure?
If an employee makes a Disclosure then investigate. There is no reason to panic. It is only if an employer dismisses or prejudices a worker for making a Protected Disclosure that the full rigours of the Act come in to play. When the Investigation has been completed make sure to keep the worker in the loop by reporting back to him the conclusions of the Investigation.
What if I dismiss my employee and he brings an Application for Interim Relief before the Circuit Court?
Consult your solicitor immediately. It is very important that your solicitor is in a position to prepare a defence to any such Application and he will need adequate time to do so. Often such Applications will arise on only a few days notice before a Court Hearing. The solicitor will need to speak to witnesses in your company and gather relevant documents. He will need to consult Counsel. Preferably, an Affidavit should be prepared for swearing by the employer in advance of the Court to disprove the allegations made by the employer.
The provisions of the Protected Disclosure Act are complicated, both for worker and for employer. The consequences of a disclosure, whether valid or invalid, can be devastating for both sides. Employers should check their Employer`s Liability Insurance Policy to ascertain if they have Insurance Cover for such Claims.
Read my substantive Article
While this short Article has given you some relevant pointers, it is important to read my substantive Article to learn the reasoning as to why all of the above actions are necessary. This is a complex Act and failure to comply with all of the provisions of the Act could be devastating for your business.
Morgan McManus Solicitors
Ph. No.: 00353 47 51011