Protected disclosures carry some of the highest compensation risks in Irish employment law, with WRC awards of up to five years' pay. A live WRC case highlights why every employer needs a compliant framework before a disclosure arrives Read more
Irish employment law imposes serious obligations on employers when a worker raises concerns about wrongdoing. Get it wrong, and the WRC can award up to five years’ pay in compensation. A recent Irish Times report on a WRC hearing involving a state agency highlights just how badly protected disclosure situations can spiral when employers react defensively rather than following a structured process.
Under the Protected Disclosures Act 2014 (as amended in 2022), any worker who reports a “relevant wrongdoing” in a work-related context is protected from penalisation. Employers bear the legal burden of proving that any adverse treatment was not connected to the disclosure. The WRC can award compensation of up to five years’ remuneration where penalisation is established.
In the case now before the WRC, an inspector at a state body raised concerns about uninsured vehicles being used in operations. According to the hearing, the worker described knowing his letter to management would be “like a nuclear bomb going off.” The allegation is that the agency subsequently “threw him under the bus” by subjecting him to adverse treatment after the disclosure was made.
The case has not yet been decided. But the pattern it describes is one our team at Purpletree’s employment advice service encounters regularly: an employee raises a legitimate concern, the employer feels attacked, and the response focuses on the messenger rather than the message.
That reaction, however understandable in the moment, is exactly what the Protected Disclosures Act was designed to punish.
A protected disclosure is not the same as a grievance or a complaint. It specifically involves a worker reporting information about a “relevant wrongdoing” that came to their attention in a work-related context. Relevant wrongdoing covers a broad range of issues: criminal offences, failures to comply with legal obligations, dangers to health and safety, environmental damage, misuse of public funds, and more.
The worker does not need to be right about the wrongdoing. They only need to have a “reasonable belief” that the information they are disclosing tends to show one of these categories of wrongdoing. This is where many employers are caught off guard. Dismissing a disclosure because the worker’s concern turns out to be unfounded does not remove the legal protection.
The 2022 amendment to the Act also expanded the definition of “worker” beyond traditional employees. It now covers board members, shareholders, volunteers, job applicants, and even former employees. The pool of people who can make a protected disclosure against your organisation is far wider than most employers realise.
Penalisation is the heart of most WRC protected disclosure claims. It covers any act or omission by the employer that adversely affects the worker’s conditions of employment. This goes well beyond dismissal. Penalisation includes demotion, transfer, changes to duties, denial of promotion, intimidation, exclusion from meetings, and even being treated differently by colleagues if the employer allowed or encouraged that behaviour.
In the state agency case reported this week, the allegation centres on the worker being sidelined after raising his concerns. That type of claim does not require a dramatic event like a firing. It can build gradually through a series of smaller actions that, taken together, amount to adverse treatment.
The burden of proof sits with the employer. Once a worker establishes that they made a protected disclosure and were subsequently subjected to adverse treatment, the employer must prove the treatment was entirely unrelated to the disclosure. Without documented, contemporaneous records showing legitimate reasons for every management decision taken after the disclosure, this is extremely difficult to do.
This is where having robust HR policies and procedures already in place makes the difference between defending a claim successfully and writing a large cheque.
Handling a protected disclosure properly involves far more than simply reading the employee’s concern and filing it away. Under the 2022 amendment, employers with 50 or more workers must establish formal internal reporting channels. These channels must allow disclosures to be made in writing or orally, must guarantee confidentiality, and must follow specific procedural timelines.
The employer must acknowledge receipt of the disclosure within seven days. A designated person must then assess the disclosure, investigate it or refer it to a prescribed person, and provide feedback to the worker within three months (or six months in justified cases). Each of these steps needs documentation. Each interaction with the disclosing worker needs to be handled carefully to avoid any appearance of penalisation.
Simultaneously, the employer often needs to investigate the substance of the wrongdoing itself. That investigation must be separate from any consideration of who made the disclosure. This means running parallel processes, maintaining confidentiality walls between the people handling the disclosure and those investigating the underlying issue, and ensuring that line managers who may feel personally implicated are removed from decision-making about the discloser’s employment.
In our experience advising employers across Ireland, this is where things fall apart. A manager who has been named in a disclosure continues to make decisions about the discloser’s roster, workload, or performance reviews. Nobody intends to penalise the worker, but the optics become impossible to defend at the WRC.
The maximum WRC award for penalisation following a protected disclosure is up to five years’ remuneration. This is significantly higher than the cap for unfair dismissal claims (which is capped at two years’ pay). The legislation deliberately sets the bar high to deter employers from retaliating against whistleblowers.
Where the penalisation amounts to dismissal, the worker can also seek interim relief from the Circuit Court, which can order their reinstatement pending the full hearing. This remedy is almost unique in Irish employment law and reflects the seriousness with which the State treats whistleblower retaliation.
The financial exposure alone makes this an area where employers cannot afford to improvise. A situation we see frequently is an employer receiving a disclosure for the first time and scrambling to figure out how to respond. By the time they have worked out who should handle it, they have already missed the seven-day acknowledgement deadline and created a paper trail that suggests the disclosure was not taken seriously.
When we guide clients through a protected disclosure, the process starts well before any disclosure is received. Our HR Essentials service includes developing and implementing a protected disclosures policy that meets the requirements of the 2022 Act. This includes designating a responsible person, establishing reporting channels, and training managers on how to recognise a disclosure when it lands on their desk.
When a disclosure is made, our HR investigations team manages the response: acknowledging receipt within the statutory timeframe, assessing the disclosure, coordinating the investigation, and providing feedback to the worker. We handle the documentation, manage the separation between the disclosure process and any parallel investigation, and advise on every management decision that touches the discloser’s employment during and after the process.
This is not something employers should manage alone. The interplay between confidentiality obligations, investigation timelines, and the ongoing employment relationship creates a situation where one misstep can turn a manageable disclosure into a six-figure WRC claim.
The state agency case making headlines this week is a reminder that protected disclosures can arise in any organisation, in any sector. Construction firms, healthcare providers, manufacturers, hospitality businesses, and retailers all have workers who may encounter practices that could constitute relevant wrongdoing. The question is not whether you will receive a disclosure, but whether you are ready for one when it arrives.
If you do not have a protected disclosures policy in place, or if you have one that was drafted before the 2022 amendments took effect, you are exposed. If your managers have never been briefed on what a protected disclosure looks like and how they should respond, you are exposed. If you have no designated person to receive and assess disclosures, you are exposed.
Talk to our team at Purpletree about getting your protected disclosures framework right before it becomes urgent. This is precisely the type of compliance challenge that our WRC compliance service is built to handle.
Yes. The Act applies to all employers regardless of size. The requirement to establish formal internal reporting channels applies to organisations with 50 or more workers, but the protections against penalisation and the right to make a disclosure apply in every workplace. Smaller employers are still expected to have a policy and a process for handling disclosures.
If an employee makes a disclosure that they know to be false, the protections of the Act do not apply. However, an employee who makes a disclosure in good faith but turns out to be mistaken is still fully protected. The threshold is “reasonable belief,” not accuracy. Employers should be extremely cautious before taking any action against a worker who has made a disclosure, even if the underlying concern is not substantiated.
A grievance typically relates to a personal complaint about the worker’s own employment conditions, such as a dispute about pay, working hours, or treatment by a manager. A protected disclosure relates to information about wrongdoing that affects others or the public interest. In practice, the line can blur: a worker may frame what is really a personal grievance as a protected disclosure, or a genuine disclosure may also involve a personal complaint. Distinguishing between the two requires careful assessment, which is one of the reasons professional HR support is so valuable in these situations.
The WRC can award up to five years’ remuneration where penalisation is established under the Protected Disclosures Act. This is one of the highest compensation caps in Irish employment law. Where the penalisation amounts to dismissal, the worker may also apply to the Circuit Court for interim relief, potentially resulting in reinstatement before the full WRC hearing takes place.
This article is for general informational purposes only and does not constitute legal advice. Employment law is complex and fact-specific. For advice on your specific situation, contact the Purpletree HR team directly.
Our team of HR specialists advises Irish employers on exactly these issues every day. Get in touch for a confidential conversation.
Speak to Our Team
Register Now:
You will receive a confirmation email with a Zoom invitation in advance of the Breakfast Briefing.
