New Motivation Test in Whistleblowing

The European Union (Protection of Trade Secrets) Regulation 2018 was implemented on 9 June 2018 and introduces an amendment to the Protected Disclosures Act 2014.

The Protected Disclosures Act 2014 deals with the protection of employees who suffer a detriment as a result of disclosing wrongdoings, which have come to their attention in connection with their employment. Employees can be awarded up to five times their annual remuneration, where they can show substantial grounds for contending that their dismissal was wholly or mainly due to the fact that they had made a protected disclosure.

What is a Relevant Wrongdoing?

The following list is included in the list of relevant wrongdoings for which a worker may make a protected disclosure:

  1. That an offence has been, is being or is likely to be committed
  2. That a person has failed, is failing or likely to fail to comply with any legal obligation, other than one rising under the worker’s contract of employment
  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
  8. That information in respect of issues in the above has been, is being or is likely to be concealed or destroyed:

The purpose of introducing the legislation in relation to trade secrets is to provide protection against the unlawful acquisition, use and disclosure of trade secrets by someone making a protected disclosure, more commonly known as blowing the whistle, or ‘whistleblowing’.

As the legislation on the protection of trade secrets differed across the EU, the introduction of this legislation also provided clarity and uniformity on the standards required across the EU in protecting trade secrets. The implication now is that anyone making a protected disclosure, where a trade secret may be revealed as a result, will need to prove that their disclosure was motivated because of the public interest.

A trade secret can be any information that has a commercial value because it is a secret. An employer needs to demonstrate that information is a ‘trade secret’ where they are challenging the legitimacy of a protected disclosure in this regard.

Where whistleblowers are found to have disclosed a trade secret they may be liable to a three-year custodial sentence and a fine of €50,000 if they cannot prove that by doing so was motivated by their concern in relation to the public interest.

Implications of new legislation

The introduction of this ‘good faith’ or ‘public interest’ test, may now act as a significant deterrent to those making a protected disclosure which goes against the original aim of the Protected Disclosures legislation in eliminating any deterrents or barriers for people making disclosures.

If you have any questions regarding the motivation test of protected disclosures, please contact our advice line on 1890 253 369

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