An employee is protected in making a protected disclosure

Employee protection for disclosures

The term disclosure is defined as information given by an employee regarding the improper conduct of an employer of the employee or another employee of the employer.

It differs from a protected disclosure which is described as a disclosure made in specific circumstances by an employee to an employer, Minister, Prescribed Person, the designated Authority, an Attorney at Law or to the Prime Minister.

The Protected Disclosures Act of 2011 states in Section 3 that

The objects of this Act are to-     

(a)   facilitate and encourage the making, in a responsible manner, of disclosures of improper conduct, in the public interest;

(b)  regulate the receiving, investigating or otherwise dealing with disclosures of improper  conduct; and

(c)  protect employees who make specified disclosures from being subjected to occupational detriment.

However, what constitutes improper conduct?  Improper conduct is defined as:…

(a) any criminal offence

(b) failure to carry out a legal obligation

(c) conduct that is likely to result in a miscarriage of justice;

(d) conduct that is likely to threaten the health or safety of a person;

(e) conduct that is likely to threaten or damage the environment;

(f) conduct that shows gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds;

(g) act of reprisal against or victimization of an employee;

(h) conduct that tends to show unfair discrimination on the basis of gender, race, place of origin, social class, colour, religion or political opinion; or

(i) wilful concealment of any act described in (a) to (h) above.

A disclosure of improper conduct should first be made to your employer. Under the Protected Disclosures Act the employer must establish procedures for receiving, investigating or otherwise dealing with disclosures. The employer must also appoint at least one person as a Designated Officer with responsibility for receiving and investigating disclosures.

This Designated Officer would also have the responsibility to give an update of the progress of the investigation, findings and recommendations to his employer, the person who made the disclosure and the Designated Authority.

Alternatively

1) A disclosure can be made to a Minister if the person making the disclosure is employed to the Ministry or is employed to a Department or Public Body under that Ministry.

2) A disclosure can be made to a Prescribed Person if the employee believes that the subject matter of the improper conduct falls within their portfolio.

3) A disclosure can be made to the Designated Authority where there is a reasonable fear of occupational detriment, fear that the evidence of the improper conduct will be destroyed or where no action was taken on an earlier disclosure made.

4) A disclosure can be made to the Minister with portfolio responsibility or the Prime Minister or to both on matter that prejudice national security, defence or international relations.

Under the Act, the employer must take all reasonable steps to protect the identity of an employee who makes a disclosure and to treat all disclosures, statements given, information or thing provided to the designated officer as secret and confidential.

There are exceptions whereby the circumstances in which a person may disclose information obtained in an investigation of a protected disclosure, is in the furtherance of an investigation or in any legal or disciplinary proceedings. However, the identity of the person who made the disclosure must not be disclosed.

The second schedule of the act outlines the information that must be provided when making a disclosure.

Information to be Supplied in Disclosure

1. The full name, address and occupation of the person making the disclosure.
2. The nature of the improper conduct in respect of which the disclosure is made.
3. The name of the person alleged to have committed, to be committing or to be about to commit the improper conduct.
4. The time and place where the alleged improper conduct is taking place, took place or is likely to take place.
5. The full name, address and description of a person (if any) who witnessed the commission of the improper conduct.
6. Whether the person making the disclosure has made a disclosure of the same or of some other improper conduct on a previous occasion and if so, about whom and to whom the disclosure was made.
7. If the person is an employee making a disclosure about that person's employer or a fellow employee, whether the person making the disclosure remains in the same employment.

The employee has certain rights under the Protected Disclosures Act as follows:

(a) An employee shall not be subjected to any occupational detriment on the basis that the employee seeks to make, has made, or intends to make, a protected disclosure.

(b) An employee who is dismissed as a consequence of seeking to make, making or intending to make a protected disclosure shall be treated as being unjustifiably dismissed.

(c) Where an employee suffers occupational detriment at or about the same time that he makes a protected disclosure, the occupational detriment shall be presumed to be a consequence of the protected disclosure, unless the employer shows that the act that constitutes the occupational detriment is otherwise justified.

What is meant by Occupational Detriment? Occupational detriment is defined as any act or omission that results in an employee, in relation to his employment, being:

(a) subject to disciplinary action;

(b) dismissed, suspended, or demoted;

(c) harassed, intimidated or victimized;

(d) transferred against his will;

(e) refused transfer or promotion;

(f) subject to a term or condition of employment or retirement from employment, that is altered to his disadvantage;

(g) provided with an adverse reference;

(h) denied appointment to any employment,

(i) threatened with any of the actions specified in (a) to (h); or

(j) otherwise adversely affected in respect of his employment, profession or office, including employment opportunities and job security;

The Integrity Commission of Jamaica has the responsibility for the oversight and monitoring of the Protected Disclosures Act 2011. It was given that responsibility in early 2021. It is a Commission of Parliament, which is governed under the Integrity Commission Act, 2017 (ICA).

The ICA effectively merged the operations of the following entities:

(a)    the former Office of the Contractor General, which had the primary responsibility of ensuring that Government procurement procedures and the issuance of Government licences and permits were free of impropriety and irregularity;

(b)    the former Commission for the Prevention of Corruption, to which Public Officials were required to file their income, asset and liability statements annually; and

(c)     the former Integrity Commission (Parliamentary), to which Parliamentarians were required to file their income, assets and liability statements annually.

In addition to executing the operations of its three originating entities, the Integrity Commission also executes the following expanded functions:

(a)  receive complaints in relation to alleged acts of corruption and instances of non-compliance with the Act;

(b)  investigate alleged acts of corruption and instances of non-compliance with the Act;

(c)   prosecute acts of corruption and offences committed under the Act;

(d)   monitor and investigate the award, implementation and termination of government contracts;

(e)   adopt and strengthen mechanisms for educating the public in matters relating to corruption; and

(f)    Assume the role of the Designated Authority for operationalizing and administering the Protected Disclosures Act, 2011.

The Office of the Integrity Commission of Jamaica is located at

3rd - 6th Floors

Sagicor SIGMA Building

63-67 Knutsford Boulevard

Kingston 5, Jamaica

Anti-Corruption Hotline:  876 926 0001

www.integrity.gov.jm