Protected Disclosures Act 2014

PART 1 Preliminary and General

1. Short title and commencement

1.(1) This Act may be cited as the Protected Disclosures Act 2014.

(2) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Provision for review

2. The Minister shall—

(a) not later than the end of the period of 3 years beginning on the day on which this Act is passed, commence a review of the operation of this Act, and

(b) not more than 12 months after the end of that period, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.

2A. F1[Provision for further review

2A.The Minister shall—

(a) not later than the end of the period of 5 years beginning on the date of the passing of the Protected Disclosures (Amendment) Act 2022 commence a review of the operation of this Act, and

(b) not more than 12 months after the end of the period referred to inparagraph (a)make a report to each House of the Oireachtas of the findings made on the review and the conclusions drawn from those findings.]

3. Interpretation

3.(1) In this Act—

F2["Annex" means the Annex to the Directive, the text of which for ease of reference is set out inSchedule 6;]

F2["breach" means an act or omission—

(a) that is unlawful and to which one or more of the following subparagraphs applies:

(i) the act or omission falls within the scope of the Union acts set out in the Annex that concern the following areas:

(I) public procurement;

(II) financial services, products and markets, and prevention of money laundering and terrorist financing;

(III) product safety and compliance;

(IV) transport safety;

(V) protection of the environment;

(VI) radiation protection and nuclear safety;

(VII) food and feed safety and animal health and welfare;

(VIII) public health;

(IX) consumer protection;

(X) protection of privacy and personal data, and security of network and information systems;

(ii) the act or omission affects the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union and as further specified in relevant Union measures; or

(iii) the act or omission relates to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law;

or

(b) that defeats the object or purpose of the rules in the Union acts and areas referred to inparagraph (a);]

F2["Commissioner" means the person who, for the time being, holds the office of Protected Disclosures Commissioner established bysection 10A;]

“contract of employment” means contract of service or apprenticeship, whether express or implied, and (if express) whether oral or in writing;

F2["data protection law" means—

(a) the Data Protection Acts 1988 to 2018,

(b) the General Data Protection Regulation,

(c) all law of the State giving further effect to the General Data Protection Regulation,

(d) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016^2on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, and

(e) all law of the State giving effect or further effect to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 referred to inparagraph (d);]

F2["Directive" means Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019^3on the protection of persons who report breaches of Union law, as amended by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020^4;]

“disclosure”, in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention;

“educational establishment” means any university, college, school or other educational establishment;

“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a);

“employer”, in relation to a worker, means, subject to subsection (2) (c)—

(a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,

(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,

(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—

(i) the person for whom the worker works or worked, or

(ii) the person by whom the individual is or was introduced or supplied to do the work,

F3[…]

(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or F4[training,]

F5[(e) in the case of an individual who is a worker by virtue ofparagraph (e)of the definition of that term, the undertaking of which the worker is or was a shareholder,

(f) in the case of an individual who is a worker by virtue ofparagraph (f)of the definition of that term, the undertaking, the administrative, management or supervisory body of which the worker is or was a member,

(g) in the case of an individual who is a worker by virtue ofparagraph (g)of the definition of that term and who is a volunteer, the person for whom the individual is or was a volunteer,

(h) in the case of an individual who is a worker by virtue ofparagraph (h)of the definition of that term, the person by whom or on whose behalf the recruitment process concerned is or was carried out, or

(i) in the case of an individual who is a worker by virtue ofparagraph (i)of the definition of that term, the person by whom or on whose behalf the pre-contractual negotiations are or were carried out;]

F2["enactment" means—

(a) an Act of the Oireachtas,

(b) a statute that was in force in SaorstátÉireann immediately before the date of coming into operation of the Constitution and that continued in force by virtue of Article 50 of the Constitution, or

(c) an instrument made under an Act of the Oireachtas or a statute referred to inparagraph (b);]

F2["European Union" has the same meaning as it has in theEuropean Communities Act 1972;]

F2["facilitator" means an individual who assists, in a confidential manner, a reporting person in the reporting process in a work-related context;]

F2["feedback" means the provision to a reporting person of information on the action envisaged or taken as follow-up and on the reasons for such follow-up;]

F2["follow-up" means any action taken by—

(a) the recipient of a report made in the manner specified insection 6or7, or

(b) a person to whom a report is transmitted undersection 7A,8,10Cor10D,

to assess the accuracy of the information contained in the report and, where relevant, to address the relevant wrongdoing reported, including, but not limited to, actions such as an internal inquiry, an investigation, prosecution, an action for recovery of funds or the closure of the procedure;]

F2["General Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^5on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;]

“Minister” means the Minister for Public Expenditure and Reform;

F2["Ombudsman" means the person who holds the office of Ombudsman in accordance with theOmbudsman Act 1980;]

F6["penalisation" means 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, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) 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,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) 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,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;]

F2["person concerned" means a natural or legal person who is referred to in a report as a person to whom the relevant wrongdoing is attributed or with whom that person is associated;]

F2["prescribed" means prescribed by order or regulations made by the Minister under this Act;]

F2["prescribed person" means a person prescribed by order undersection 7;]

“protected disclosure” shall be construed in accordance with section 5;

“public body” means—

(a) a Department of State,

(b) a local authority within the meaning of the Local Government Act 2001,

(c) any other entity established by or under any enactment (other than the Companies Acts), statutory instrument or charter or any scheme administered by a Minister of the Government,

(d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government,

(e) a subsidiary (within the meaning of the Companies Acts) of such a company,

(f) an entity established or appointed by the Government or a Minister of the Government,

(g) any entity (other than one within paragraph (e)) that is directly or indirectly controlled by an entity within any of paragraphs (b) to (f),

(h) an entity on which any functions are conferred by or under any enactment (other than the Companies Acts), statutory instrument or charter, or

F7[(i) a designated institution of higher education within the meaning of theHigher Education Authority Act 2022that falls under paragraph (a) of section 53(1) of that Act and that is also a funded body within the meaning of that Act;]

“relevant information” shall be construed in accordance with section 5(2);

“relevant wrongdoing” shall be construed in accordance with subsections (3) to (5) of section 5;

F2["report" or "to report" means the oral or written communication of information on relevant wrongdoings;]

F2["reporting person" means a worker who makes a report in accordance with this Act;]

“trade union official” means an official of a trade union licensed under the Trade Union Acts 1871 to 1990;

F8["worker" means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes

(a) an individual who is or was an employee,

(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) an individual who works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,

(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to inparagraph (h)), and

(j) an individual who is deemed to be a worker by virtue ofsubsection (2)(b),

and any reference to a worker being employed or to employment shall be construed accordingly.]

F2["work-related context" means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information;]

(2) For the purposes of this Act—

(a) an individual who is or was—

(i) a member of the Garda Síochána, or

(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956),

is deemed to be an employee,

(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker,

(c) “employer”—

(i) in relation to a member of the Garda Síochána (other than the Commissioner of the Garda Síochána), means the Commissioner of the Garda Síochána;

(ii) in relation to a civil servant (within the meaning aforesaid), has the meaning given by section 2A(2) of the Unfair Dismissals Act 1977;

(iii) in relation to a member of the Permanent Defence Force or the Reserve Defence Force (both within the meaning aforesaid), means the Minister for Defence.

F9[(3) A word or expression that is used in this Act and which is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.]

4. Expenses

4. The expenses incurred by the Minister under this Act shall be paid out of moneys provided by the Oireachtas.

4A. F10[Orders and regulations

4A.(1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every order made undersection 6(6)or7(2)and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]

PART 2 Protected Disclosures

5. Protected disclosures

5.(1) For the purposes of this Act “protected disclosure” means, subject to F11[subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, F12[7B,] 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 F13[in a work-related context].

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross F14[mismanagement,]

F15[(h) that a breach has occurred, is occurring or is likely to occur, or]

F16[(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.]

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.