Friday, July 7, 2017
The Protected Disclosures Act, 2014 will celebrate its third birthday on 15 July 2017. Given the ongoing controversies over whistleblowing in Ireland, it wasn’t unreasonable to expect a difficult birth – although the legislation did not result in many court cases in the period between 2014 and the end of 2015.
However, that changed in 2016 and there have been a number of developments since then. It’s not unreasonable to wonder if the legislation is going to grow up to be a problem child, if you’re an Irish employer at least.
The legislation was novel in a number of ways. It was the first cross-sectoral legislation to address whistleblowing in this country, to begin with, and introduced the only form of statutory injunction in Irish employment law. In fact, the government can hardly be criticised for an insufficient response to the perception that whistleblowers were suffering. If anything, as far as an employer is concerned (particularly a public sector employer) it may go too far.
The legislation’s main purpose is to protect workers and it does this by prohibiting penalisation of any kind (dismissal, harassment, failure to promote etc.) where an employee makes a “protected disclosure”. A protected disclosure arises where an employee forms a “reasonable belief” that information that comes to their attention in the workplace “tends to show one or more relevant wrongdoings”.
The definition of “relevant wrongdoings” could not be wider – it runs from the possibility of crimes being committed to damage to the environment to risks to health and safety. Public bodies are particularly catered for and practically all acts or omissions involving misconduct on the part of a public body (including wasting public funds or resources) will be a “relevant wrongdoing” for the purposes of the Act and therefore a protected disclosure.
One of the more notable features of the Act is the comparatively low bar for making a disclosure in the first instance – all an employee has to do is form a “reasonable belief”. Back in 2014, it appeared likely that this would mean that the chances of an employee falling short of the threshold would be minimal – and decisions of the courts since then have confirmed it.
In particular (at least as far as an initial disclosure is concerned), there’s no requirement for an employee to demonstrate that the allegation is true (or close to true). Reasonable belief is enough. Coupled with that is the fact that the employee’s motivation is irrelevant. There is nothing to stop an employee acting from malice or dislike of their employer.
Easily one of the more controversial aspects of the legislation in 2014 was the fact that it provided for the only form of statutory injunction to prevent dismissal in Irish employment law. Many legal commentators asked why whistleblowers should get this level of protection – were they any more deserving than pregnant employees or employees who are the subject of severe workplace discrimination, for example?
Either way, since 2014 a whistleblowing employee can secure an injunction restraining their dismissal if they can convince a Judge of the Circuit Court that it is “likely” that there are “substantial grounds” to believe that the dismissal arose from the fact that the employee made a disclosure. It was anticipated at the time that this would set a low bar for injunction applications – and that has proved to be the case.
As well as allowing an employee to secure an injunction, the Act allows an employee to bring a claim for penalisation by their employer as a result of making a disclosure – and the employee can be awarded damages up to a threshold of 5 years’ remuneration. As was also noted at the time, this is also a significant departure from the norm in employment law cases – in normal course, an employee’s damages are capped at two year’s salary.
It is still relatively early days for the legislation but as 2016 turned into 2017, more and more cases came before the courts. If the trend continues, employers are going to have to grapple with these issues in increasing numbers.
Thus far, it’s very clear that employees will be able to secure injunctions with relative ease even if an employer is able to point to objective factors justifying a dismissal. In one decided case, an employer implemented a series of redundancies but the employees were able to convince the court that their dismissal arose because of protected disclosures.
In another case, an employee’s disclosure was accepted (although he ultimately failed to secure an injunction) even in circumstances where he did not actually make the disclosure until after he had been terminated. In a third case, the mere suggestion that an employee might be the subject of disciplinary action arising from a disclosure resulted in an injunction being granted. These are worrying trends for employers.
The critical question – and one that has yet to be decided – is in what circumstances a dismissal will be upheld notwithstanding the fact that an employee made a disclosure in the past. If disclosures are made in increasing numbers, inevitably some of those employees will be dismissed for reasons wholly unconnected with the disclosure. How will an employer be able to act with impunity? Will the fact of having made a protected disclosure act as a shield indefinitely?
Nobody is going to argue that genuine whistleblowers should be without a remedy. However, as more cases come before the courts, it is becoming clear that the legislation is going to be extremely challenging in practice. Certainly, it’s to be hoped that the village isn’t destroyed in order to save it.