Protected Disclosures

The Protective Disclosures Act was passed to protect workers from retribution after they inform their employer that something is amiss, or that a 'wrongful act' has occurred or is due to occur.

In other words, it is a legal mechanism to protect whistleblowers. When an employee discloses information, the employer cannot penalise him or her.

If an employee is penalised by their employer after making a protected disclosure, he/she has legal recourse. It is also a legal requirement that the identity of the employee who made the disclosure must be protected.

Any information that could identify the person who made the protected disclosure must not be disclosed by the person who receives it.

What is a Protected Disclosure?

The definition is specified in Section 5 of the Protected Disclosures Act 2014:
For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

How is the information disclosed?

Employers or other responsible parties receive the information from the employee.

Examples of "Relevant Wrongdoing" are as follows:

  • There has been, is being or is likely to be an offence committed;
  • When an individual does not or is unlikely to comply with any legal obligation, other than those arising from his or her contract of employment;
  • Miscarriages of justice have occurred, are occurring, or are likely to occur;
  • An individual's health or safety has been, is being or might be endangered.

Uncertainty regarding the disclosure will result in an assumption that it is a protected disclosure.

Identifying a protected disclosure is the first step in assessing whether penalisation occurred.

Dismissal of an employee for unfair reasons

Unfair dismissal following a protected disclosure constitutes a violation of the legislation, and an employee may seek legal redress as a result.

Penalty imposed on employee

When a protected disclosure is made, an employer cannot penalise or threaten an employee, or cause another individual to penialise or threaten the employee.

The disclosure must therefore have been protected as described above.

A penalty must then be imposed by the employer. A link must exist between the employee's disclosure and the employer's punishment.

Did the employee suffer any consequences as a result of making the Protected Disclosure?

The following was stated in a case before the court in regard to what the employee must prove in order to receive a penalty:

“It follows that a Complainant under the Act must demonstrate

  1.  that they made one or two protected disclosures;
  2.  that they suffered a detriment and
  3.  there is a causal connection between (i) and (ii)”

In order to prove a case, an employee must follow the following steps.

Penalisation - Acts such as:

  • suspension, lay-off, dismissal;
  • A change of job duties, a change of location, a reduction in wages, a change in working hours;
  • demotion;
  • being disciplined, reprimanded, getting a penal
  • unfair treatment;
  • coercion, intimation, harassment;
  • discrimination, disadvantage;
  • injury, damage, loss;
  • threat of reprisal.

It is the employee's responsibility to prove that any of the penalised acts committed by the employer were related to the protected disclosure.