Make a protected disclosure (whistleblowing)

The information below is only a brief overview of protected disclosures and how to make one. Before making a disclosure, you should read the full policy and guidance document at the bottom of this page, together with the Protected Disclosures Act and the Protected Disclosures (Amendment) Act 2022. Neither the information below, nor the attached guidance, is legal advice. If required, you should seek legal advice from the department’s legal advisors or from the Office of the Attorney General.

A protected disclosure, in the Act, is a disclosure of information which, in the reasonable belief of a worker:

• tends to show one or more relevant wrongdoings
• came to the attention of the worker in a work-related context
• is disclosed in the manner prescribed in the Act

The terms above are further defined by the Act as follows:

Disclosure of information

• conveying facts, such as stating that particular events have occurred
• the information must, however basic, pithy or concise, tend to show one or more relevant wrongdoing
• motivation of the worker making a disclosure is irrelevant

Reasonable belief

• reporting person must have a reasonable belief that the information disclosed shows, or tends to show, wrongdoing
• must be subjectively believed and objectively reasonable
• does not have to be correct – you can be mistaken in your belief once it was based on reasonable grounds

Worker

A worker is an individual who:

• is or was an employee
• 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
• works or worked for a person in circumstances in which
• the individual is introduced or supplied to do the work by a third person
• 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
• 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
• is or was a shareholder of an undertaking,
• is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members
• is or was a volunteer
• acquires information on a relevant wrongdoing during a recruitment process
• acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to above)

Relevant wrongdoing

Relevant wrongdoing means that:

• an offence has been, is being, or is likely to be committed
• 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
• a miscarriage of justice has occurred, is occurring or is likely to occur
• the health or safety of any individual has been, is being or is likely to be endangered,
• the environment has been, is being or is likely to be damaged
• 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
• an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement
• a breach of specified EU law set out in the Directive has occurred, is occurring or is likely to occur
• 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

Work-related context

Current or past work activities in the public or private sector through which, irrespective of the nature of these activities, the reporting person acquires information concerning a relevant wrongdoing, and within which the reporting person could suffer penalisation for reporting the information.

More information

Please see sections 1 to 5 of the fully policy for more information on what is and is not a protected disclosure.

A worker should make a disclosure at the earliest possible time if in their reasonable belief, any of the wrongdoings outlined has occurred, is occurring or is likely to occur or there has been a breach of Civil Service policy such that harm may be arising to the public or to the Department.

A disclosure under this guidance should preferably be made in writing to ensure that all the relevant information is made available at the time the disclosure is made.

Before making a disclosure a worker may wish to obtain advice or guidance.

It is recommended that, at a minimum, reports should include the following details:

• that the report is a protected disclosure and is being made under the Procedures
• the reporting person’s name, position in the organisation, place of work and confidential contact details
• the date of the alleged wrongdoing (if known) or the date the alleged wrongdoing commenced or was identified
• whether or not the alleged wrongdoing is still ongoing
• whether the alleged wrongdoing has already been disclosed and if so, to whom, when, and what action was taken
• information in respect of the alleged wrongdoing (what is occurring / has occurred and how) and any supporting information
• the name of any person(s) allegedly involved in the alleged wrongdoing (if any name is known and the worker considers that naming an individual is necessary to report the wrongdoing disclosed)
• any other relevant information

Generally, a worker will make the disclosure within the Department and via the line management structure. If this is not an option, the disclosure may be made to the Head of Internal Audit.

The legislation provides for six avenues of disclosure in total. Disclosures can be made to:

• an employer or other responsible person
• a prescribed person, as set out in Statutory Instrument SI 367/2020
• a Minister
• the Protected Disclosures Commissioner
• a legal adviser
• a third party in other cases

Reports may also be made anonymously.

Please see sections 6 to 10 of the fully policy for more information on how to make a disclosure and the different reporting channels available.

Reports of alleged wrongdoing received from an employee of the Department will be acknowledged within 7 days.

Two of the key protections under the Act are the protection of identity and the protection from penalisation for having made a protected disclosure.

The Act provides that a recipient must not disclose to another person any information that might identify the discloser, except where the:

• recipient shows that he/she took all reasonable steps to avoid such disclosure
• recipient has a reasonable belief that the discloser did not object to their identity being disclosed
• recipient had a reasonable belief that it was necessary for the investigation of the wrongdoing concerned, to prevent serious risk to the security of the State, public health, public safety or the environment or for the prevention of crime or prosecution of a criminal offence
• the disclosure is otherwise necessary in the public interest or is required by law

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, loss of opportunity for promotion, or withholding of 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)
• coercion, intimidation, harassment or ostracism
• discrimination, disadvantage or unfair treatment
• injury, damage or loss
• 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

There are also protections under the Act for persons against whom an allegation of wrongdoing has been made.

Should any party wish to avail of it, there is a review mechanism outlined under the policy.

Please see sections 11 to 15 of the full policy for more information on what happens after making a protected disclosure and the protections provided for under the legislation.

Different staff have different roles when it comes to protected disclosures and there are requirements when it comes to record keeping. Please see sections 16 to 20 for more information on this.

The Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act 2022 (The Act), enables workers to disclose information in relation to wrongdoing in the workplace by ensuring that safeguards exist should reprisals be taken against them. The Act provides for a 'stepped' disclosure regime in which several distinct channels (internal, regulatory and external) are available.

The Act requires the department to have procedures for dealing with protected disclosures and to provide written information on these procedures to workers. This guidance is informed by Department of Public Expenditure, NDP Delivery and Reform guidance titled 'Interim guidance for public bodies and prescribed persons'.

See the document below for the department's full policy and guidance document on protected disclosures. This document should be read together with the Protected Disclosures Act and the Protected Disclosures (Amendment) Act 2022.

The document is applicable to all workers at or on behalf of the Department of Further and Higher Education, Research, Innovation and Science and provides protections for those beyond the usual definition of employees.