Making a report in accordance with the Protected Disclosures Act is referred to as “making a protected disclosure”. A “protected disclosure” means a disclosure of “relevant information” made by a “worker” in the manner specified in the Act. The relevant information must, in the reasonable belief of the worker, tend to show one or more relevant wrongdoings and have come to the attention of the worker in a work-related context. These requirements are explained in more detail below.
Relevant Information
“Relevant information” is information, in the reasonable belief of the worker, that tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context.
The information should disclose facts about someone or something, rather than a general allegation that is not founded on any facts.
Workers should not investigate allegations of wrongdoing. The National Office for Protected Disclosures (NOPD) is responsible for performing an initial assessment on all reports received and determining the appropriate follow-up related to each report.
Reasonable Belief
The worker’s belief must be based on reasonable grounds, but it is not a requirement that the worker is ultimately correct. Workers are not expected to prove the truth of an allegation.
No disciplinary or other action will be taken against a worker who reasonably believes the information they have reported tends to show a wrongdoing even if the concern raised turns out to be unfounded.
The motivation of the worker in making a report is irrelevant as to whether or not it is a protected disclosure. The worker will be protected if they reasonably believe when making the report that the information disclosed tended to show a relevant wrongdoing.
A report made in the absence of a reasonable belief is not a protected disclosure and may result in disciplinary action. It is a criminal offence to make a report that contains any information the reporting person knows to be false. A person who suffers damage resulting from the making of a known to be false report has a right to take legal action against the reporting person.
What are relevant wrongdoings?
To qualify as a protected disclosure, the matter reported must be a “relevant wrongdoing”. The following are relevant wrongdoings as per section 5(3) of the 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 mismanagement;
h) that a breach of EU law as set out in the Act, has occurred, is occurring or is likely to occur; or
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.
It does not matter whether a relevant wrongdoing occurred, occurs or would occur in Ireland or elsewhere and whether the law applying to it is that of Ireland or that of any other country or territory.
Workers may be subject to mandatory reporting obligations relevant to their role or profession (e.g. the Children First Act 2015, provides that ‘Mandated Persons’ shall report concerns of harm to children to Tusla - the Child and Family Agency). Such reports may or may not amount to protected disclosures under the Protected Disclosures Act, depending on whether the requirements of the Act are met. Legislation other than and in addition to the Protected Disclosures Act may provide for making reports. Workers should ensure that they are aware of what protections, if any, such other legislation and/or the Protected Disclosures Act makes available to them, and seek legal advice if necessary.
Who is a ‘worker’ under the Act?
A “worker” is an individual in a work-related relationship with the HSE who acquires information on relevant wrongdoings in a work-related context and who is or was:
- an employee (all directly employed staff of the HSE, under any contract);
- an independent contractor to the HSE, whether or not the work/services were provided personally by the individual to the HSE, or otherwise;
- an agency worker on HSE sites (agency nursing, patient care and medical staff, catering, cleaners, consultancy, security etc.);
- an employee working for Section 38 and 39 agencies [1];
- a trainee (a person provided with work experience under a training course or programme or with training for employment (or with both) otherwise than under an employment contract);
- a shareholder of an undertaking (this is unlikely to be relevant for workers making disclosures internally to the HSE);
- a member of the administrative, management or supervisory body of an undertaking including non-executive members (HSE Board members and members of HSE oversight committees);
- a volunteer;
- an individual who acquired information on a relevant wrongdoing during a recruitment process; or an individual who acquired information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process).
| [1] Employees of Section 38 and 39 agencies are encouraged in the first instance to report disclosures internally, within their own organisation. A worker employed or engaged by a Section 38/39 organisation may make a disclosure to the HSE under the Protected Disclosures Act, 2014, where that individual reasonably believes that the wrongdoing relates solely or mainly to, the conduct of the HSE or something for which the HSE has legal responsibility, as per S6.(1) ‘Disclosure to Employer or Other Responsible Person’ of the Protected Disclosures Act, 2014. |
Matters that are not relevant wrongdoings
A matter is not a relevant wrongdoing if it is a matter that it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of, or involve an act or omission on the part of the employer.
A matter concerning interpersonal grievances exclusively affecting a worker, such as grievances about interpersonal conflicts involving the reporting person and another worker, or a complaint to the employer (e.g. related to contract issues) or about the employer, which concerns the worker exclusively, is not a relevant wrongdoing under the Act, and will not be dealt with under this procedure. Such matters are dealt with under the:
Failure to comply with a legal obligation that arises solely under the worker’s contract of employment or other contract where the worker undertakes to do or perform personally any work or services is not a relevant wrongdoing. Such matters are dealt with under the:
Protected disclosures can only be made by workers and be made in a work-related context. Reports of wrongdoing that do not fulfil these criteria will be dealt with under other relevant policies. In such cases, information disclosed, where appropriate, may be referred to the Senior Accountable Officer [2] (SAO) for their consideration and appropriate attention outside of the Protected Disclosures framework.
Here you can view all applicable HSE National policies, procedures, protocols, guidelines
| [2] Senior Accountable Officer (SAO): The SAO is positioned at senior management level and at no less than Regional Executive Officer or National Director level. |
