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Section 2 Right not to suffer detriment

Broadly, workers have the right not to be disadvantaged or victimised by their employer because they have blown the whistle.

A. A. Right not to suffer detriment (s2 PIDA)

  1. – After section 47A of the 1996 Act there is inserted-

47B. –  Protected disclosure

  • A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –

  • by another worker of W’s employer in the course of that other worker’s employment, or
  • by an agent of W’s employer with the employer’s authority,

on the ground that W has made a protected disclosure.

(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer.

(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer

(1D) In proceedings against W’s employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker –

  • from doing that thing, or
  • from doing anything of that description.

(1E) A worker or agent of W’s employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if –

  • the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and
  • it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of subsection (1B).]

  • …This section does not apply where –

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of [Part X]).

(3)          For the purposes of this section, and of sections 48 and 49 so far as relating to

this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.]

Interpretation

This section contains the general right not to suffer detriment (short of dismissal) due to having blown the whistle (s47B(1) ERA). This right has been supplemented by an additional right for a whistleblower to bring a claim against an individual co-worker or agent of the employer who subjects them to a detriment (s47B(1A) ERA). No qualifying period of work is necessary in order to acquire this right; it can be enforced from day one of a worker’s employment (as defined by PIDA).

DEFINITIONS

“employee” : s.230(1) ERA

“protected disclosure” : s.1 PIDA, s.43A ERA

“worker” : s.1 PIDA, s.43K(1) ERA