Whistleblower Protection
Protection from dismissal
There is deemed to be an unfair dismissal where an employee is dismisses because he or she has made a protected disclosure. Persons who are otherwise excluded from the Unfair Dismissal Act are protected in relation to protected disclosures. Compensation may be up to five years’ salary.
- Where—
- the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
- the investigation of the relevant wrongdoing concerned 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 per cent less than the amount that it would otherwise be.
There are provisions for interim relief in cases where a claim is brought for redress for a dismissal which is an unfair dismissal on this basis. n employee who claims to have suffered penalisation wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief within 21 days immediately following the date of the last instance of penalisation or such longer period as the Court may allow.
No Penalisation
An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
“Penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—
- suspension, lay-off or dismissal,
- demotion or loss of opportunity for promotion,
- transfer of duties, change of location of 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),
- unfair treatment,
- coercion, intimidation or harassment,
- discrimination, disadvantage or unfair treatment,
- injury, damage or loss, and
- threat of reprisal;
- withholding of training,
- a negative performance assessment or employment reference,
- failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,
- failure to renew or early termination of a temporary employment contract,
- harm, including to the worker’s reputation, particularly in 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;
Compensation Right
If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in civil liability against the person by whom the detriment is caused. “Detriment” includes—
- coercion, intimidation or harassment,
- discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment),
- injury, damage or loss, and
- threat of reprisal.
A person may not both pursue the above civil action against a person in respect of a matter, and in respect of the same matter make or present against the same person a claim for redress under the Unfair Dismissals Acts and a complaint for breach of protected disclosure
Where the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the protected disclosure concerned, in determining the amount of any damages to be awarded, to a person to whom detriment is caused, the amount may be up to 25 per cent less than the amount that it would otherwise be.
The detriment so caused is deemed to have been caused as a result of the person or another person having made a protected disclosure, unless the person whom it is alleged caused the detriment proves that the act or omission concerned was based on duly justified grounds
Immunity from Civil Liability
No action in civil proceedings, other than a defamation action, shall lie against a person in respect of the making of a protected disclosure. A person who suffers damage resulting from the making of a report, where the reporting person knowingly reported false information, has a right of action in tort against the reporting person.
A protected disclosure will potentially qualify for the defence of qualified privilege. It is a defence to a defamation action for the defendant to prove that-
- the statement was published to a person or persons who had a duty to receive, or interest in receiving, the information contained in the statement, or the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
- the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.
Interim Relief Pending Determination
An employee who claims to have been dismissed by the employee’s employer wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief. The Circuit Court shall not entertain an application for interim relief unless it is presented to the Court before the end of the period of 21 days immediately following the date of dismissal (whether before, on or after that date) or such longer period as the Court may allow.
The Court shall determine the application for interim relief as soon as practicable. The employee shall give the employer prior written notice of intention to make the application for interim relief.
The Court shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.
Procedure on Hearing
Where, on hearing an employee’s application for interim relief, it appears to the Court that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure, statutory powers apply.
The Court shall ask the employer (if present) whether the employer is willing, pending the determination or settlement of the claim—
- to reinstate the employee (that is, to treat the employee in all respects as if the employee had not been dismissed), or
- if not, to re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed.
Terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed means, as regards seniority, pension rights and other similar rights, that the period before the dismissal should be regarded as continuous with the employee’s employment following the dismissal.
Reinstatement
If the employer states a willingness to reinstate the employee, the Court shall make an order to that effect. If the employer—
- states a willingness to re-engage the employee in another position, and
- specifies the terms and conditions on which the employer is willing to do so,
the Court shall ask the employee whether he or she is willing to accept the position on those terms and conditions.
If the employee is willing to accept the position on those terms and conditions, the Court shall make an order to that effect. If the employee is not willing to accept the position on those terms and conditions—
- where the Court is of the opinion that the refusal is reasonable, the Court shall make an order for the continuation of the employee’s contract of employment, and
- otherwise, the Court shall make no order.
If on the hearing of an application for interim relief the employer fails to attend before the Court, or states an unwillingness either to reinstate or to re-
Continuation of Contract of Employment
An order for the continuation of an employee’s contract of employment is an order that the contract of employment continue in force—
- for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and
- for the purposes of determining for any purpose the period for which the employee has been continuously employed,
from the date of its termination (whether before or after the making of the order) until the determination or settlement of the claim.
Where the Court makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the claim.
The amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
- in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and
- in the case of a payment for any past period, within such time as may be specified in the order.
If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.
Any payment made to an employee by an employer under his or her contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, goes towards discharging the employer’s liability in respect of that period ; and, conversely, any payment in respect of a period goes towards discharging any liability of the employer under, or in respect of breach of, the terms and conditions of employment or contract of employment in respect of that period.
If an employee, on or after being dismissed, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the Court shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.
The amount which an employee could reasonably have been expected to earn, the employee’s normal pay period and the normal pay day for each such period shall be determined as if the employee had not been dismissed.
Order Issues
At any time between the making of an order, and the determination or settlement of the claim, the employer or the employee may apply to the Court for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.
If, on the application of an employee, the Court is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee, the Court shall—
- make an order for the continuation of the employee’s contract of employment, and
- order the employer to pay compensation to the employee.
Compensation shall be of such amount as the Court considers just and equitable in all the circumstances having regard—
- to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and
- to any loss suffered by the employee in consequence of the non-compliance.
If on the application of an employee the Court is satisfied that the employer has not complied with the terms of an order for the continuation of the employee’s contract of employment the following apply.
Where the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the Court shall determine the amount owed by the employer on the date of the determination. In any other case, the Court shall order the employer to pay the employee such compensation as the Court considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non- compliance.
Any sum awarded to the employee on the determination of the claim that he or she has been unfairly dismissed shall be specified separately from the above amount
Redress for Contravention
A decision of an adjudication officer in relation to a complaint of a shall do one or more of the following, namely —
- declare that the complaint was or, as the case may be, was not well founded,
- require the employer to take a specified course of action,
- require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 260 weeks ’ remuneration in respect of the employee ’ s employment
A decision of the Labour Court on appeal from a decision of an adjudication officer shall affirm, vary or set aside the decision of the adjudication officer.