Protected Disclosures

The Protected Disclosures Act 2014 became operational on 15th July 2014. The Act is intended to provide a robust statutory framework within which workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

Under the legislation the Council is required to put in place (I) policy for ‘workers’ who come under the direct remit of the Council (ii) an external protected disclosure policy for workers/employees of other organisations in respect of matters that come within the remit of the Teaching Council Act.

The scope of these matters is defined as:

  1. The regulation of the teaching profession and the professional conduct of teachers; or
  2. The establishment, promotion, maintenance and improvement of standards of programmes of teacher education and training, teaching, knowledge, skills and competencies of teachers in recognised primary and post-primary schools, and the professional conduct of teachers; or
  3. The promotion of continuing education and training and professional development of teachers.

The Council recently approved its external protected disclosure policy which is available here.

The Director of the Teaching Council is an external person to whom a protected disclosure may be made by a worker, provided the disclosure comes within the scope of the work of the Teaching Council.

Set out below, are some frequently asked questions about protected disclosures and when a protected disclosure can be made to the Teaching Council.

If you require further information about making a protected disclosure to the Director of the Teaching Council, please contact:

Mr Brendan O’Dea - Deputy Director – 01 651 7900 or Ms Carmel Kearns – Education Officer – 01 651 7900

1. What is the Protected Disclosures Act 2014?

A protected disclosure refers to a situation where a worker discloses information in relation to a relevant wrongdoing. This is sometimes known as “whistleblowing”.

The Protected Disclosures Act 2014 (the “Act”) commenced on 15 July 2014. Please click here to access the Act.

The Act is a framework for workers to disclose relevant wrongdoings which have come to their attention in the course of their employment. Further information on what is a protected disclosure and what is meant by a relevant wrongdoing is answered at question 8 below. A worker can make a protected disclosure internally to his or her employer or externally to certain persons. Where possible, a worker should first raise a concern in line with the protected disclosures policy of the employer.

The Teaching Council understands that in certain circumstances that a worker may wish to make a disclosure outside of the internal procedures of his or her employer. The Director of the Teaching Council is an external person to whom a protected disclosure may be made by a worker. In order to make a protected disclosure to the Teaching Council, the disclosure must come within the scope of the work of the Teaching Council. Further information on how to make a protected disclosure to the Teaching Council is contained at question 10.

The Act also provides protection for workers from action being taken against them by their employers when making certain disclosures in the public interest. Further information on the protections for workers making a protected disclosure is answered at question 21 below.

2. Who can make a protected disclosure?

In order to make a protected disclosure, the person making the disclosure must be a worker. A disclosure made by any other person is not a “protected disclosure” under this Act.

 

A 'worker' includes employees, former employees, independent contractors, trainees, agency staff, persons on work experience and volunteers. In a school or other educational institutions this can include teachers (including substitute teachers and student teachers on school placement), lecturers, special needs assistants, tutors and administrative and other support staff.

3. To whom can a protected disclosure be made?

Under the Act a worker can make a protected disclosure internally to his or her employer. Wherever possible, you should first raise your concern with your employer.

 

However, a worker can make a protected disclosure to the Teaching Council where the disclosure comes within the scope of the work of the Teaching Council. Where a disclosure is being made externally to the Teaching Council, there is a higher standard for the making of a disclosure than where the disclosure is made to the employer. The discloser must reasonably believe that the information disclosed, or any allegation contained in it, is substantially true.

4. I am a worker and want to make a protected disclosure to someone other than my employer about education and teaching. To whom should I make my disclosure?

Protected disclosures can be made externally to certain persons under the Act. These are persons, known as “prescribed persons”, that the Minister for Public Expenditure and Reform has named to receive protected disclosures and includes the heads or senior officials of certain public and regulatory bodies.

 

The Director of the Teaching Council is an external person to whom a protected disclosure can be made.

Where a disclosure is about education and teaching, the following are the relevant persons:

 

  • The Secretary General of the Department of Education and Skills

  • The Chief Executive of the Higher Education Authority

  • The Chief Executive of the State Examinations Commission

  • The Chief Executive of Quality and Qualifications Ireland

  • The Director of the Teaching Council

     

    In order to make a disclosure to the above persons, the disclosure must come within the scope of the work of these bodies. For further information, please click here to access the legislation which provides information about the matters the above bodies can receive protected disclosures.

5. When can a protected disclosure be made to the Teaching Council?

The Director of the Teaching Council is an external person to whom a protected disclosure may be made by a worker.

 In order to make a protected disclosure to the Teaching Council, the disclosure must come within the scope of the work of the Teaching Council.

 This means that the protected disclosure must be about:

 

  • the regulation of the teaching profession and the professional conduct of teachers; or

  • the establishment, promotion, maintenance and improvement of standards of programmes of teacher education and training, teaching, knowledge, skills and competencies of teachers in recognised primary and post-primary schools, and the professional conduct of teachers; or

  • the promotion of continuing education and training and professional development of teachers.

     

    Further information is a contained at question 19 below.

6. What is a protected disclosure?

A 'protected disclosure' under the Act is a disclosure of relevant information, which:

  1. in the reasonable belief of the worker shows one or more relevant wrongdoings (see question 8 below),

  2. Came to the attention of the worker in connection with his or her employment, and

  3. Where a disclosure is being made by a worker externally to the Director of the Teaching Council, the worker must believe that the information disclosed and any allegations contained in it are substantially true.

A higher standard applies when a worker makes a complaint externally to the Teaching Council. This higher standard is the requirement at (c) which is an additional requirement when a worker is making a disclosure externally to the Teaching Council.

7. What is a relevant wrongdoing?

In order for a disclosure to be a protected disclosure, a worker must have a reasonable belief that the relevant information shows one or more relevant wrongdoings. For further information on “reasonable belief” see question 9 below.

A relevant wrongdoing includes the following, which have been, are being, or are likely to be committed or occur:

  1. A criminal offence;

  2. A failure to comply with any legal obligation other than those arising under the worker’s contract of employment;

  3. A miscarriage of justice;

  4. The endangering of the health and safety of any individual;

  5. Damage to the environment;

  6. Unlawful or improper use of funds or resources of a public body or other public money;

  7. An act or omission by or on behalf of a public body which is oppressive, discriminatory, grossly negligent or constitutes gross mismanagement;

  8. the deliberate concealment of any of the above matters.

8. When making a protected disclosure, I understand that I must have “reasonable belief”. Does that mean that I must be correct in my belief about a wrongdoing?

The term “reasonable belief” does not mean that the belief must be correct. A worker is entitled to be mistaken in their belief, so long as the belief was based on reasonable grounds. A worker will not be penalised for being incorrect in a reasonable belief, as long as the worker had a reasonable belief that the information disclosed showed or tended to show a wrongdoing. However, there is a higher standard applied when making a protected disclosure externally to other persons.

Therefore, if you are making a protected disclosure to the Director of the Teaching Council, it is important to note that you must also believe that the information disclosed, and any allegation contained in it are substantially true.

9.What ifmy disclosure relates to how my employer is treating me?

If your disclosure is about your personal circumstances at work, your terms and conditions of employment or the way you are being treated in work, then the disclosure should not be made to the Teaching Council as a protected disclosure. In these cases, you should refer to your workplace grievance procedures.

10. How do I make a protected disclosure to the Director of the Teaching Council?

Wherever possible, you should first raise your concern with your employer.

The Teaching Council understands that in certain circumstances that a worker may wish to make a disclosure outside of the internal procedures of his or her employer.

If you wish to make a protected disclosure to the Director[1] of the Teaching Council then the protected disclosure should

  • Be in writing. If you are unable to make your disclosure in writing, please contact us for assistance.
  • Provide details of your name, position and/or role.
  • Contain information, including facts, which tend to show the wrongdoing and what occurred.
  • Include all relevant dates and all other relevant details.
  • Include the reasons for the concerns being raised.

[1] A disclosure may alternatively be made to the Chairperson of the Council or the Council’s Protected Disclosure Officer (Carmel Kearns) or the Deputy Director with responsibility for protected disclosure arrangements (Brendan O’Dea)

11. Will my identity be protected if I make a disclosure?

The Teaching Council hopes that a worker will be able to report concerns openly. However, the Teaching Council also understands that a worker may wish to raise a concern in confidence.

There is an obligation on the Teaching Council when it receives a protected disclosure to protect the identity of the discloser. However, it is important to note that the protection of a worker’s identity cannot be guaranteed in all cases and can be disclosed in certain circumstances.

The Act provides that the discloser’s identity will be protected except where:

  • The recipient [The Teaching Council] shows that he or she took all reasonable steps to avoid the disclosure.

  • The recipient had a reasonable belief that the discloser did not object to his or her identity being disclosed.

  • The recipient had a reasonable belief that the disclosure was necessary for

    • The investigation of the wrongdoing concerned

    • The prevention of serious risk to the security of the State, public health, public safety or the environment.

    • The prevention of crime or prosecution of a criminal offence

  • The disclosure is otherwise necessary in the public interest or is required by law.

Some of the above exceptional circumstances may apply where a disclosure is made about serious matters to the Teaching Council. You should note when making a disclosure that raises serious concerns about child protection or certain serious matters

of a criminal nature, the Teaching Council has an obligation to report such matters to the appropriate authorities, which may include An Garda Síochána and or Tusla (the Child and Family Protection Agency).

If you request that your identity remains protected by keeping your identity confidential, the Director of the Teaching Council, will not, save in exceptional circumstances outlined above, disclose your identity without your consent.

Where a worker has a concern about their identity being revealed and possible penalisation, the worker should contact the Director of the Teaching Council and appropriate measures can be discussed and where possible, measures taken to protect confidentiality. If it is not possible for the Teaching Council to investigate a concern without revealing the worker’s identity, the Director will discuss with the worker, whether the Teaching Council can proceed to investigate the disclosure. For further information about how the Teaching Council investigates protected disclosures, please see question 15 below.

12. Can I review the decision of the Director of the Teaching Council to reveal my identity?

A review can be requested in relation to the following;

  1. Any decision made to disclose the identity of the discloser;

  2. The outcome of any assessment or investigation undertaken in respect of the protected disclosure; or;

  3. The outcome of any assessment or investigation in respect of any complaint.

     

The Teaching Council will have this review undertaken by a member of the senior management who has not been involved in the decision being reviewed. There is no entitlement to have more than one review in relation to the same issue.

13. Can I make a protected disclosure anonymously?

The Teaching Council encourages a worker making a protected disclosure to provide his or her name, position and/or role.

 A disclosure can be made anonymously. The Teaching Council will where appropriate act upon anonymous disclosures insofar as possible. However, the Teaching Council may not be fully able to investigate an anonymous disclosure, or at all, without knowing the identity of the person making the complaint.

 It is important to note that under the Act, that a worker cannot obtain redress where a worker has been penalised under the Act, unless the worker identifies him or herself.

14. DoI need to investigate the wrongdoing or provide proof of the wrongdoing before making the protected disclosure?

You are not required or entitled to investigate matters yourself to find proof of the wrongdoing and should not try to do so. If you wish to make a protected disclosure, all you need to do, is disclose the information you have. This information must be based on a reasonable belief that it discloses a wrongdoing and, where the information relates to individuals, that it is necessary to disclose that information. When making a protected disclosure to the Director of the Teaching Council you must also believe that the information disclosed, and any allegation contained in it are substantially true. 

15. How will my disclosure be investigated?

When a disclosure is received, the Teaching Council will carry out an initial investigation which will involve a screening process. This means that the disclosure will be reviewed to confirm (i) whether or not it is a protected disclosure and/or (ii) whether or not it is within the scope of the Teaching Council.

You will be informed of the decision of the Director of the Teaching Council.

If the Director of the Teaching Council is of the view that the disclosure is an employment issue, this will be communicated to you and you will be referred back to the internal grievance procedures of your employer.

If the Teaching Council decides that the disclosure does not come within the scope of the Teaching Council, this does not mean that your disclosure is not a protected disclosure. You may still be able to make your protected disclosure to another appropriate person or body. The Teaching Council will inform you if the matter does not come within the scope of the Teaching Council. Where possible you may be provided with information about other persons to whom you may be able to make the disclosure.

16. What powers does the Teaching Council have to investigate a protected disclosure?

The Teaching Council can only investigate disclosures in accordance with its legislation, the Teaching Council Acts 2001 to 2015. The Teaching Council has not been provided with any additional powers of investigation under the Protected Disclosures Act 2014.

 The Teaching Council’s main role is to set professional standards and regulate teachers in the public interest. It does this through its registration, education and training, and fitness to teach functions.   The Teaching Council’s investigative powers under its legislation are to investigate complaints about a teacher’s fitness to teach. For further information about the Teaching Council’s complaints process. Please click here.

 This means that protected disclosures about a teacher’s fitness to teach, can be investigated by the Teaching Council in accordance with its complaints process.

 It is important to note that the Teaching Council, under its legislation, does not have the power to investigate issues about schools or other educational institutions. Please see question 19 for guidance relating to the Teaching Council‘s policy for information which is outside the Teaching Council’s powers of investigation.

 You should note when making a disclosure that raises serious concerns about certain serious matters or matters of a criminal nature, the Teaching Council has an obligation to report such matters to the appropriate authorities, which may include An Garda Síochána and or Tusla (the Child and Family Protection Agency).

17. What if my disclosure relates to child protection or criminal offences?

If your complaint relates to matters of child protection or criminal offences, the Teaching Council may have mandatory reporting obligations to an Garda Síochána or Tusla under the following legislation:

  • The Criminal Justice (Withholding of information on offences against children and vulnerable persons) Act 2011;

  • The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016;

  • The Children First Guidelines 2011.

In situations where a protected disclosure is made to the Teaching Council, consideration will be given as to whether mandatory reporting requirements arise from it. It may be necessary, in these circumstances for the Teaching Council to disclose the identity of the person who has made the disclosure. Please see question 12 for further information about the circumstances in which the Teaching Council may disclose the identity of a person making a disclosure.

18. What if a disclosure which is made to the Teaching Council is outside the Teaching Council’s powers of investigation?

Where a protected disclosure is made and falls outside the Teaching Council's powers of investigation, there may be other appropriate bodies that can conduct an investigation. e.g. Boards of Management of schools or other educational institutions, the Secretary General of the Department of Education and Skills, the Chief Executive of the Higher Education Authority and the Chief Executive of the State Examinations Commission or others.

If the Teaching Council is unable to investigate a protected disclosure, the Teaching Council will endeavour, where possible, to provide you with information about where to make the protected disclosure.

In some situations, the disclosure may be of such a serious nature that the Teaching Council is not the appropriate body to carry out the investigation.

In certain cases the Teaching Council may refer a matter to the relevant authorities such as An Garda Síochána or Tusla (the Child and Family Protection Agency), or may advise the worker making the disclosure to do so. This will likely arise where child protection concerns are raised or certain serious matters of a criminal nature are disclosed to the Teaching Council.

19. Does the Teaching Council owe a duty to a teacher about whom a protected disclosure has been made?

Yes. Where a protected disclosure has been about a teacher and the Teaching Council has decided to conduct an investigation in relation to a teacher’s fitness to teach, the Teaching Council is required to adhere to the principles of natural justice and fair procedures in its investigation. The teacher has a right under fair procedures to challenge the evidence made against him/her. This right will be balanced with your rights listed above including, the right to protection of identity. See question 12 above about the protection of identity. As set out above, the right to have your identity protected is not guaranteed. The protection of your identity may not be applied for example, in cases where the Teaching Council reasonably believes that your identity is required to be disclosed for the effective investigation of the wrongdoing under its complaints investigation process. Whether it is necessary to reveal your identity will depend on the facts of each case, the allegation made against a teacher and the nature of the allegation. The Teaching Council will before a matter is investigated decide whether it is necessary to disclose information that would disclose your identity. You will be informed of the decision in advance, except in exceptional cases. See question 11 above about protection of identity.

20. Will I be informed of the investigations and the outcome of the investigation?

The Teaching Council’s complaints investigation process in relation to a teacher’s fitness to teach is a confidential process. Therefore, the Teaching Council in order to ensure fair procedures for the teacher and to ensure the investigation is not prejudiced will not be able to provide you with full information in respect its investigation. The Teaching Council can assure you that protected disclosures that are investigated under its complaints investigation process, will receive full attention in accordance with its powers under the legislation.

21. Can I be penalised for making a protected disclosure?

Where a protected disclosure is made, the worker is entitled to the following protections under the Act:

  1. Protection from dismissal - A worker who is dismissed as a result of having made a protected disclosure may claim up to 5 years' remuneration from his employer under the Unfair Dismissals Act 1977. An application may also be made to the Circuit Court for relief pending the determination or settlement of an unfair dismissals claim, which may include reinstatement.

     

  2. Protection from penalisation - A worker who is penalised by his employer for having made a protected disclosure may bring a complaint to the Rights Commissioner. If the complaint is upheld, the employer may be required to pay compensation of up to 5 years' remuneration. 'Penalisation' includes suspension, dismissal, demotion, unfair treatment, discrimination, harassment or the threat of reprisal;

     

  3. Immunity from civil liability - No civil proceedings (aside from defamation) may be taken against a person for having made a protected disclosure;

     

  4. Liability for victimisation - A person who has been coerced, intimidated, harassed, discriminated against, disadvantaged, treated adversely in respect of employment (or future employment), suffered injury, damage, loss or the threat of reprisal for having made a protected disclosure may take civil proceedings against that person;

     

  5. Defence in criminal prosecution - In a prosecution for an offence prohibiting or restricting the disclosure of information, it is a defence to show that the disclosure was reasonably believed to be a protected disclosure.

Furthermore, if you are threatened with any disciplinary action upon making a disclosure, you can apply for interim relief from the courts, such as an injunction prohibiting dismissal.

22. Where can I obtain further information about making a protected disclosure?

If you require further information about making a protected disclosure, please contact:

Brendan O’Dea – Deputy Director, the Teaching Council – 01 651 7900

Carmel Kearns – Education Officer, the Teaching Council - 01 651 7900

Please note that the Teaching Council cannot provide you with legal advice about whether to make a protected disclosure.