Protected Disclosures: Is Disclosure Related Penalisation, Which Occurs Before Disclosure Is Made, Prohibited?

Author:Mr Cian Beecher, Shane McCarthy and Niamh Fennelly
Profession:Arthur Cox

The Protected Disclosures Act 2014 provides a comprehensive suite of protections to 'whistleblowers' who are penalised by their employer or dismissed on account of raising concerns regarding possible wrongdoing in their workplace.

Workers in the UK enjoy similar protections. It is therefore unsurprising that many workplace complaints are now labelled as protected disclosures.

On a literal interpretation of the 2014 Act, the statutory protections for workers come into play only after the protected disclosure has been made. A question therefore arises as to whether an employee is protected against penalisation, where his/her employer discovers that he/she is considering making a protected disclosure? The same question could apply in respect of an employee who contemplates making a protected disclosure but decides, for whatever reason, not to proceed.

These matters were recently considered in the UK in Bilsbrough v Berry Marketing Services Ltd. In this case, an employee was suspended and subsequently dismissed after the employer became aware that he was researching how to make a protected disclosure to a regulator. The UK employment tribunal held that the protection of the law should be extended to an employee who was considering, or perceived as considering, making a protected disclosure.

The Law

In the UK, workers are afforded protections if they are penalised by their employer or suffer any detriment because of the act of disclosure. Under section 47A of the UK Employment Rights Act 1996 "a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure". Section 103 of the 1996 Act provides that "an employee who is dismissed shall be regarded... as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure".

In Ireland, the 2014 Act affords similar protections to workers who have made disclosures. Section 12(1) sates that "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 is defined very broadly under the 2014 Act and may include disciplinary sanction, suspension, a change in working hours or demotion amongst other things. Section 11 makes a number of amendments...

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