Protected Disclosures Act

Protected Disclosure and Evidence of Wrongdoing

In order to benefit from the protections of the Protected Disclosures Act the supposed 'disclosure' must relate to some form of wrongdoing.

The raising of a concern does not amount to a breach under the act, Everett Financial Management Ltd v Murrell EAT 552/02 2002.



The case of Eiger Securities LLP v Korshunova [2017] ICR 561 is of particular importance. This case illustrates the fact that the WRC or Labour Court must be satisfied that the information purportedly amounting to a protected disclosure actually discloses an alleged wrongdoing.

In that decision it was said that:

“The identification of the obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the claimant believed to have been breached. The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with”.

(Cited in ADJ-00012789)

Protected Disclosure and Unfair Dismissal

Section 11 of the Act amends the Unfair Dismissals Acts to protect employees from being penalised as a result of having made a protected disclosure by making dismissal for having made a protected disclosure an automatically unfair dismissal entitling an employee to relief under the Act.

In Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J), Judge Comerford considered what circumstances would amount to substantial grounds for a Court to conclude that a dismissal has resulted wholly or mainly from the making of a protected disclosure. Therein, Comerford J concluded that such factors would necessarily include: the temporal proximity between the making of the protected disclosure and the dismissal; whether any animosity arose between the parties as a result of the protected disclosure prior the dismissal; and whether the Complainant was treated in a less favourable manner to comparative employees who had not made protected disclosures. Comerford J concluded that, on the facts of the case, particularly the fact that there was a temporal proximity of 2 and a half months’, that the dismissal had resulted wholly or mainly from the protected disclosure.

(Cited in ADJ-00012789)

Protected Disclosure as Duty of Employment

Mr Patrick Dunne was a security officer for the respondent company. He appealed the decision of an Adjudication Officer in respect of a complaint relating to penalisation under the Protected Disclosures Act (see Mr Patrick Dunne -v- Northside Security Services Company (ADJ00025753)). The Adjudication Officer of the WRC found that the alleged protected disclosure made by Mr Dunne did not meet the test laid down in Section 5 of the Protected Disclosures Act, and accordingly did not uphold his complaint.

Mr Dunne alleged that he was penalised after he made a protected disclosure in relation to the operation of CCTV cameras by another employee of the company. It was his contention that disclosing the use of CCTV footage by another employee for nefarious reasons constituted a protected disclosure. Mr Dunne further contended that the moving of him to another location constituted a penalisation.

Section 5(5) of the Protected Disclosure Act states that a matter is not a relevant wrongdoing if it is a matter which is the function of the worker to detect, investigate or prosecute. That being the case, it was argued that it was within the duties and obligation of Mr Dunne to report suspicious activities of any person or employees attending the premises. 

Based on the facts as found above, the Labour Court was satisfied that the wrongdoing reported by Mr Dunne was in pursuance of his duty as a security officer and was therefore not a protected act within the meaning of the Protected Disclosures Act.

Protected Disclosure - Requirement to 'Disclose'

Ms Murphy brought a complaint against the respondent company on the grounds that she had been penalised for making a protected disclosure (see Frances Murphy -v- Connemara Marble Industries (ADJ00006471)). Ms Murphy was an employee of the respondent company which was operated by her family. There had been a number of ongoing disputes between the complainant and her family members in relation to the operation and management of the company.

The respondent company provided a tearoom and gift shop for tourists in the Connemara region. Ms Murphy contended that she was concerned about the operation of a cash till on the premises. Her contention was that the operation of the cash till was designed to circumvent tax and VAT declarations. It was her further contention that her refusal to operate the cash till amounted to a protected disclosure.

This matter was considered by the WRC who found that no protected disclosure arose. The Labour Court later made a determination and cited the case of Baranya -v- Rosderra Irish Meat Groups Limited, wherein it was outlined that a protected disclosure is effectively a term of art as defined by the Protected Disclosure Act. The word “disclose” has the ordinary meaning of to reveal or make known. That being the case, the Labour Court concluded that Ms Murphy had failed to reach this threshold in making a disclosure. 

Objective Justification for 'Penalisation'

In order to determine a complaint of penalisation under the Protected Disclosure Act, it must be established by the complainant that a protected disclosure had been made and, if so, the WRC and Labour Court must then examine whether a penalisation within the meaning of Section 3 of that Act had occurred.

In this case (Mr Pascal Hosford -v- Department of Employment, Affairs and Social Protection (ADJ00019848)), it was not disputed that a protected disclosure had been made by either party. That being the case, it then fell upon the WRC and later the Labour Court to consider whether or not Mr Hosford was penalised for having made such a protected disclosure.

As the Labour Court pointed out in O’Neill -v- Toni & Guy Blackrock Limited (2010ELR21), it is necessary for a complainant to show that the penalisation of which he/she complains of was imposed “for” having made a protected disclosure.

Therefore, the act or omission complained of, must have been incurred because of or in retaliation for that individual having made the protected disclosure. In this instance, Mr Hosford cited a number of employment issues which had subsequently occurred, having made his protected disclosure. The respondent department was in a position to provide an objective justification for each of the actions concerned.

The Labour Court noted that, where there is more than one causal factor in the chain of events leading to the so called detriment complained of, the making of the protected disclosure must an operative cause in the sense that, but for the complainant having committed the protected act or made the protected disclosure, he/she would not have suffered the detriment complained. That being the case and based on the evidence submitted by the respondent department, the WRC and Labour Court found that the issues raised by Mr Hosford were wholly unrelated to his having raised a protected disclosure and therefore no detriment in line with Section 12 of the Protected Disclosure Act arose.