Richard Grogan: What is a protected disclosure?

Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates examines the law on protected disclosures.

The issue of what a protected disclosure is arose in case ADJ-00023777. The Adjudication Officer in this case helpfully set this out, namely the issues set out in section 5 of the Protected Disclosures Act 2014.

Section 5 sets out that a protected disclosure means, subject to section 17 and 18, a disclosure of relevant information made in a manner specified in section 6, 7, 8, 9 or 10.

The Adjudication Officer set out that information is relevant information if:

  1. In the reasonable belief of the worker, it tends to show one or more relevant wrong doings; and,
  2. It came to the attention of the worker in connection with the worker’s employment.

The Adjudication Officer set out that matters are a relevant wrong doing for the purpose of the Act in the circumstances:

  1. That an offence has been, is being or is likely to be committed,
  2. That 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,
  3. That a miscarriage of justice has occurred, is occurring or is likely to occur,
  4. That the health or safety of any individual has been, is being or is likely to be endangered,
  5. That the environment has been, is being or is likely to be damaged,
  6. That 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,
  7. That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
  8. 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.

When it comes to the issue of protected disclosures, unfortunately some employees do not consider the full implications of this Act. The Act is extremely technical. It is not simply a matter of making a complaint. It is a matter of making a complaint properly in accordance with the Act and ensuring that the complaint is one that comes within the provisions in the Act.

The fact that an employee will make a complaint that is protected but does so in the wrong way means that there has been no protected disclosure. This may seem hard, but this is the way the legislation has been drafted. In the alternative, if the employee makes the complaint to the correct body but it does not come within the definition of what is a protected disclosure, then despite what the employee may believe, it is not a protected disclosure.

It is always advisable that employees, before deciding to make a protected disclosure, get advice from an employment law solicitor. The legislation is extremely complex.

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