1. Introduction
Section 5(3) of the Protected Disclosures Act 2014 sets out the categories of wrongdoing that may be the subject of a protected disclosure. Identifying the relevant wrongdoing is the gateway question in any protected disclosure complaint. A disclosure that does not fall within Section 5(3) is not protected; a disclosure that does fall within Section 5(3) attracts the protection of the Act.
This article addresses the Section 5(3) categories, the leading interpretive principles, and the practical application of the provision in WRC and Labour Court decisions.
2. Legislation and Case Law
The Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act 2022, transposes Directive 2019/1937 on the protection of persons who report breaches of Union law. Section 5 of the 2014 Act defines a protected disclosure as a disclosure of relevant information made by a worker in the manner specified in Sections 6 to 10. Section 5(3) sets out the relevant wrongdoings: that an offence has been, is being, or is likely to be committed; that a person has failed, is failing, or is likely to fail to comply with any legal obligation; that a miscarriage of justice has occurred, is occurring, or is likely to occur; that the health or safety of any individual has been, is being, or is likely to be endangered; that the environment has been, is being, or is likely to be damaged; that an unlawful or otherwise improper use of funds or resources of a public body has occurred, is occurring, or is likely to occur; that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; that a breach has occurred, is occurring, or is likely to occur; or 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.
The Section 5(3) categories are broad and overlap. A single set of facts may give rise to wrongdoings under multiple categories. The Supreme Court in Baranya v Rosderra Irish Meats Group [2021] IESC 77 emphasised that the definition is to be construed broadly and that the worker need not establish the wrongdoing as a matter of fact – it is sufficient that the worker has a reasonable belief that the information tends to show the wrongdoing.
The reasonable belief test has both subjective and objective elements. The worker must actually hold the belief (subjective), and the belief must be reasonable in the circumstances (objective). The reasonableness is assessed by reference to the information available to the worker at the time of the disclosure, not by reference to information that emerged subsequently.
The 2022 amendments expanded the definition of ‘worker’ to include shareholders, volunteers, applicants for employment and trainees. The amendments also clarified that the Act applies to disclosures made before the relationship commenced or after it ended.
3. Decision
WRC and Labour Court decisions on the Section 5(3) gateway typically focus on two questions: whether the disclosure related to information rather than a mere grievance or allegation, and whether the information tended to show a wrongdoing falling within one of the Section 5(3) categories.
The distinction between a protected disclosure and a personal grievance is critical. The Labour Court in Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD162 held that a complaint about the worker’s own employment terms or treatment is not, in itself, a protected disclosure. The disclosure must relate to wrongdoing in the broader sense.
Where the gateway is satisfied, the substantive protections apply: protection from dismissal under Section 6(2)(ba) of the Unfair Dismissals Acts and from penalisation under Section 12 of the 2014 Act.
Where the gateway is not satisfied, the worker may still have other employment law protections, but the specific protected disclosure protections do not apply.
4. Takeaway
For workers considering whether to make a protected disclosure, the Section 5(3) gateway is the starting point. The worker should identify the specific category or categories engaged and should articulate the wrongdoing with sufficient particularity. Vague or generalised allegations may not satisfy the gateway.
For employers receiving disclosures, the assessment of whether the disclosure is protected is a critical early step. A defensive or dismissive response to a protected disclosure may itself give rise to liability. Employers should have clear policies for the receipt and handling of disclosures.
Practitioners should distinguish carefully between disclosures and grievances. The same factual matrix may give rise to both, but the legal consequences differ. Practitioners should consider whether to advance the matter as a protected disclosure, as a grievance, or as both, depending on the circumstances.
Documentation of the disclosure, the worker’s state of mind, and the employer’s response is essential. Each will be relevant to the assessment of reasonable belief and to the question of penalisation.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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