PROTECTED DISCLOSURES ACT 2014
Source: Iris Oifigiúl 55 2014-07-11 01039-01039

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paragraphs: (1) This Act may be cited as the Protected Disclosures Act 2014.
(2) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
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paragraphs: The Minister shall—
(a) not later than the end of the period of 3 years beginning on the day on which this Act is passed, commence a review of the operation of this Act, and
(b) not more than 12 months after the end of that period, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.
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paragraphs: (1) In this Act—
“contract of employment” means contract of service or apprenticeship, whether express or implied, and (if express) whether oral or in writing;
“disclosure”, in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention;
“educational establishment” means any university, college, school or other educational establishment;
“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a);
“employer”, in relation to a worker, means, subject to subsection (2) (c)—
(a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,
(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,
(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—
(i) the person for whom the worker works or worked, or
(ii) the person by whom the individual is or was introduced or supplied to do the work,
or
(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training;
“Minister” means the Minister for Public Expenditure and Reform;
“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—
(a) suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
(e) unfair treatment,
(f) coercion, intimidation or harassment,
(g) discrimination, disadvantage or unfair treatment,
(h) injury, damage or loss, and
(i) threat of reprisal;
“protected disclosure” shall be construed in accordance with section 5 ;
“public body” means—
(a) a Department of State,
(b) a local authority within the meaning of the Local Government Act 2001 ,
(c) any other entity established by or under any enactment (other than the Companies Acts), statutory instrument or charter or any scheme administered by a Minister of the Government,
(d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government,
(e) a subsidiary (within the meaning of the Companies Acts) of such a company,
(f) an entity established or appointed by the Government or a Minister of the Government,
(g) any entity (other than one within paragraph (e)) that is directly or indirectly controlled by an entity within any of paragraphs (b) to (f),
(h) an entity on which any functions are conferred by or under any enactment (other than the Companies Acts), statutory instrument or charter, or
(i) an institution of higher education (within the meaning of the Higher Education Authority Act 1971 ) in receipt of public funding;
“relevant information” shall be construed in accordance with section 5 (2);
“relevant wrongdoing” shall be construed in accordance with subsections (3) to (5) of section 5 ;
“trade union official” means an official of a trade union licensed under the Trade Union Acts 1871 to 1990;
“worker” means an individual who—
(a) is an employee,
(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,
(c) works or worked for a person in circumstances in which—
(i) the individual is introduced or supplied to do the work by a third person, and
(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,
or
(d) is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than—
(i) under a contract of employment, or
(ii) by an educational establishment on a course provided by the establishment, and includes an individual who is deemed to be a worker by virtue of subsection (2) (b) and any reference to a worker being employed or to employment shall be construed accordingly.
(2) For the purposes of this Act—
(a) an individual who is or was—
(i) a member of the Garda SÃ­ochÃ¡na, or
(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956 ),
is deemed to be an employee,
(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954 ) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker,
(c) “employer”—
(i) in relation to a member of the Garda SÃ­ochÃ¡na (other than the Commissioner of the Garda SÃ­ochÃ¡na), means the Commissioner of the Garda SÃ­ochÃ¡na;
(ii) in relation to a civil servant (within the meaning aforesaid), has the meaning given by section 2A(2) of the Unfair Dismissals Act 1977 ;
(iii) in relation to a member of the Permanent Defence Force or the Reserve Defence Force (both within the meaning aforesaid), means the Minister for Defence.
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paragraphs: The expenses incurred by the Minister under this Act shall be paid out of moneys provided by the Oireachtas.
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paragraphs: (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) 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,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) 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,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) 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.
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.
(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.
(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.
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paragraphs: (1) A disclosure is made in the manner specified in this section if the worker makes it—
(a) to the worker’s employer, or
(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—
(i) to the conduct of a person other than the worker’s employer, or
(ii) to something for which a person other than the worker’s employer has legal responsibility,
to that other person.
(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.
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paragraphs: (1) A disclosure is made in the manner specified in this section if the worker—
(a) makes the disclosure to a person prescribed under subsection (2) (a), and
(b) reasonably believes—
(i) that the relevant wrongdoing falls within the description of matters in respect of which the person is prescribed under subsection (2) (b), and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
(2) The Minister may by order—
(a) prescribe such persons as, by reason of the nature of their responsibilities or functions, appear appropriate to be recipients of disclosures of relevant wrongdoings falling within the description of matters in respect of which they are prescribed, and
(b) prescribe in respect of each prescribed person such description of matters as appears appropriate by reason of the nature of the responsibilities or functions of the person.
(3) Every order under subsection (2) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under the order.
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paragraphs: A disclosure is made in the manner specified in this section if—
(a) the worker is or was employed in a public body, and
(b) the disclosure is made to a Minister of the Government on whom any function relating to the public body is conferred or imposed by or under any enactment.
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paragraphs: A disclosure is made in the manner specified in this section if it is made by the worker in the course of obtaining legal advice (including advice relating to the operation of this Act) from a barrister, solicitor, trade union official or official of an excepted body (within the meaning of section 6 of the Trade Union Act 1941 ).
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paragraphs: (1) A disclosure is made in the manner specified in this section if it is made otherwise than in the manner specified in sections 6 to 9 and—
(a) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(b) the disclosure is not made for personal gain,
(c) any one or more of the conditions in subsection (2) is met, and
(d) in all the circumstances of the case, it is reasonable for the worker to make the disclosure.
(2) The conditions referred to in subsection (1)(c) are—
(a) that, at the time the worker makes the disclosure, the worker reasonably believes that the worker will be subjected to penalisation by the worker’s employer if the worker makes a disclosure in the manner specified in section 6 , 7 or 8 ,
(b) that, in a case where no relevant person is prescribed for the purposes of section 7 in relation to the relevant wrongdoing, the worker reasonably believes that it is likely that evidence relating to the relevant wrongdoing will be concealed or destroyed if the worker makes a disclosure in the manner specified in section 6 ,
(c) that the worker has previously made a disclosure of substantially the same information—
(i) in the manner specified in section 6 , or
(ii) in the manner specified in section 7 or 8 ,
and
(d) that the relevant wrongdoing is of an exceptionally serious nature.
(3) In determining for the purposes of subsection (1)(d) whether it is reasonable for the worker to make the disclosure regard shall be had, in particular, to—
(a) the identity of the person to whom the disclosure is made,
(b) in a case falling within subsection (2) (a), (b) or (c), the seriousness of the relevant wrongdoing,
(c) in a case falling within subsection (2)(a), (b) or (c), whether the relevant wrongdoing is continuing or is likely to occur in the future,
(d) in a case falling within subsection (2)(c), any action which the employer of the worker or the person to whom the previous disclosure was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(e) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure the use of which by the worker was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.
(5) In subsection (1)(b) “personal gain” excludes any reward payable under or by virtue of any enactment.
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paragraphs: (1) The Unfair Dismissals Act 1977 is amended—
(a) in section 1 by inserting the following definitions:
“ ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014;
‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014;”;
(b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2):
“(ba) the employee having made a protected disclosure,”;
(c) in section 6 by inserting the following subsection after subsection (2C):
“(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).”;
(d) in section 7 by inserting the following subsection after subsection (1):
“(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.”;
and
(e) in section 7 by inserting the following subsection after subsection (2A):
“(2B) Where—
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.”.
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paragraphs: (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6 (2)(ba) of the Unfair Dismissals Act 1977 applies.
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paragraphs: (1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.
(2) A person may not both—
(a) pursue a right of action under subsection (1) against a person in respect of a matter, and
(b) in respect of the same matter make or present against the same person—
(i) a claim for redress under the Unfair Dismissals Acts 1977 to 2007,
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paragraphs: (1) No cause of action in civil proceedings, other than a defamation action (within the meaning of the Defamation Act 2009 ), shall lie against a person in respect of the making of a protected disclosure.
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paragraphs: In a prosecution of a person for any offence prohibiting or restricting the disclosure of information it is a defence for the person to show that, at the time of the alleged offence, the disclosure was, or was reasonably believed by the person to be, a protected disclosure.
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paragraphs: (1) A person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person’s duties, shall not disclose to another person any information that might identify the person by whom the protected disclosure was made.
(2) Subsection (1) does not apply if—
(a) the person to whom the protected disclosure was made or referred shows that he or she took all reasonable steps to avoid so disclosing any such information,
(b) the person to whom the protected disclosure was made or referred reasonably believes that the person by whom the protected disclosure was made does not object to the disclosure of any such information,
(c) the person to whom the protected disclosure was made or referred reasonably believes that disclosing any such information is necessary for—
(i) the effective investigation of the relevant wrongdoing concerned,
(ii) the prevention of serious risk to the security of the State, public health, public safety or the environment, or
(iii) the prevention of crime or prosecution of a criminal offence,
or
(d) the disclosure is otherwise necessary in the public interest or is required by law.
(3) A failure to comply with subsection (1) is actionable by the person by whom the protected disclosure was made if that person suffers any loss by reason of the failure to comply.
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paragraphs: (1) This section applies to a disclosure of relevant information, other than a disclosure of relevant information to which section 18 applies, that might reasonably be expected to facilitate the commission of an offence or to prejudice or impair—
(a) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for any of those matters,
(b) the enforcement or administration of, or compliance with, any law,
(c) lawful methods, systems, plans or procedures employed for ensuring the safety of the public or the safety or security of persons or property,
(d) the fairness of proceedings before a court or tribunal,
(e) the security of a relevant institution, or
(f) the security of any system of communications of the Garda SÃ­ochÃ¡na, the Defence Forces or a relevant institution.
(2) If a person has been prescribed in relation to the relevant information under section 7 , the disclosure is not a protected disclosure unless—
(a) it is made in the manner specified in section 6 (1)(a), 7 or 9 , or
(b) if it is taxpayer information, it is made in the manner specified in section 10 to the Comptroller and Auditor General, or
(c) in any other case, it is made in the manner specified in section 10 , the conditions in subsection (3) are met and it is made to a member of DÃ¡il Ãireann or Seanad Ãireann.
(3) The conditions referred to in subsection (2)(c) are—
(a) that the person by whom the disclosure was made has made a disclosure of substantially the same relevant information in the manner specified in section 7 ,
(b) that a reasonable period for taking action in relation to that disclosure has passed, and
(c) that, having notified the person prescribed under section 7 in relation to the relevant information, the person by whom that disclosure was made reasonably believes that no action has been taken in relation to that disclosure or that any action so taken was inadequate.
(4) If no person has been prescribed under section 7 in relation to the relevant information, the disclosure is not a protected disclosure unless—
(a) it is made in the manner specified in section 6 (1)(a) or 9 , or
(b) it is made in the manner specified in section 10 , the condition in subsection (5) is met and it is made to a member of DÃ¡il Ãireann or Seanad Ãireann.
(5) The condition referred to in subsection (4)(b) is that the disclosure is to the effect that—
(a) an investigation undertaken for the purpose of the enforcement of any law, or anything done in the course of such an investigation, or
(b) anything done for the purpose of the prevention or detection of any offence, the apprehension of an offender or the prosecution of an offence, is not authorised by law or contravenes any law.
(6) Procedures established by Standing Orders of DÃ¡il Ãireann or Seanad Ãireann may regulate how members of DÃ¡il Ãireann or Seanad Ãireann are to deal with relevant information disclosed to them under subsection (2)(c) or (4)(b).
(7) In this section—
relevant institution” means—
(a) a place to which the Prisons Acts 1826 to 2007 apply,
(b) a military prison or detention barrack within the meaning in each case of the Defence Act 1954 ,
(c) St. Patrick’s Institution,
(d) a children detention school within the meaning of section 3 of the Children Act 2001 , or
(e) a remand centre designated under section 88 of the Children Act 2001 ;
taxpayer information” has the same meaning as in section 851A of the Taxes Consolidation Act 1997 .
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paragraphs: (1) This section applies to a disclosure of information if it might reasonably be expected—
(a) to affect adversely—
(i) the security of the State,
(ii) the defence of the State, or
(iii) the international relations of the State,
or
(b) to reveal, or lead to the revelation of, the identity of a person who has given information in confidence to a public body in relation to the enforcement or administration of the law or any other source of such information given in confidence.
(2) Without prejudice to the generality of subsection (1) this section applies to a disclosure of information—
(a) which was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State,
(b) which relates to—
(i) the tactics, strategy or operations of the Defence Forces in or outside the State, or
(ii) the detection, prevention or suppression of activities calculated or tending to undermine the public order or the authority of the State (which expression has the same meaning as in section 2 of the Offences Against the State Act 1939 ),
(c) which consists of a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government,
(d) which consists of a communication between a Minister of the Government and a diplomatic mission or consular post of the State,
(e) which was communicated in confidence to any person in or outside the State from any person in or outside the State, relates to a matter referred to in subsection (1) or to the protection of human rights and was expressed by the latter person to be confidential or to be communicated in confidence,
(f) which was communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body, or
(g) which is contained in a record of an organisation, organ, institution or body referred to in paragraph (f) and the disclosure of which is prohibited by the organisation, organ, institution or body.
(3) A disclosure of information to which this section applies is not a protected disclosure unless—
(a) it is made in the manner specified in section 6 (1)(a), 8 or 9 , or
(b) it is made in the manner specified in section 10 to the Disclosures Recipient.
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paragraphs: (1) The Garda SÃ­ochÃ¡na Act 2005 is amended—
(a) by inserting the following section after section 102:
“Protected disclosures relating to the Garda SÃ­ochÃ¡na
102A. (1) Where a disclosure relating to the Garda SÃ­ochÃ¡na is disclosed to the Ombudsman Commission as a prescribed person under section 7 of the Protected Disclosures Act 2014 in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda SÃ­ochÃ¡na.
(2) The provisions of this Part relating to investigations and reports apply with the necessary modifications in relation to a relevant wrongdoing to which a disclosure referred to in subsection (1) relates as though it were the subject of a complaint referred to in section 91.”,
and
(b) by repealing section 124.
(2) The Garda SÃ­ochÃ¡na (Confidential Reporting of Corruption or Malpractice) Regulations 2007 ( S.I. No. 168 of 2007 ) are revoked.
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paragraphs: . (1) Section 4 of the Ombudsman (Defence Forces) Act 2004 is amended by inserting the following subsection after subsection (3):
“(3A) If the complaint is that a person has penalised or threatened penalisation (within the meaning of the Protected Disclosures Act 2014) against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure (within the meaning of that Act), the Ombudsman—
(a) is not prevented from investigating any action that is the subject of the complaint, and
(b) may not decide not to carry out, and may not decide to discontinue, an investigation into any such action,
because no complaint has been made under section 114 of the Act of 1954.”.
(2) The amendment made by subsection (1) does not affect any right to complain, under section 114 of the Defence Act 1954 , that a person has penalised or threatened penalisation against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure or to submit any grievance in relation to such a complaint in accordance with regulations under subsection (4) of the said section 114.
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paragraphs: (1) Every public body shall establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures.
(2) The public body shall provide to workers employed by the body written information relating to the procedures established and maintained under subsection (1) .
(3) The Minister may issue guidance for the purpose of assisting public bodies in the performance of their functions under subsection (1) and may from time to time revise or re-issue it.
(4) Public bodies shall have regard to any guidance issued under subsection (3) in the performance of their functions under subsection (1).
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paragraphs: (1) Every public body shall prepare and publish not later than 30 June in each year a report in relation to the immediately preceding year in a form which does not enable the identification of the persons involved containing information relating to the matters specified in subsection (2).
(2) Those matters are—
(a) the number of protected disclosures made to the public body,
(b) the action (if any) taken in response to those protected disclosures, and
(c) such other information relating to those protected disclosures and the action taken as may be requested by the Minister from time to time.
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paragraphs: Any provision in an agreement is void in so far as it purports—
(a) to prohibit or restrict the making of protected disclosures,
(b) to exclude or limit the operation of any provision of this Act,
(c) to preclude a person from bringing any proceedings under or by virtue of this Act, or
(d) to preclude a person from bringing proceedings for breach of contract in respect of anything done in consequence of the making of a protected disclosure.
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paragraphs: (1) The Acts specified in column (2) of Part 1 of Schedule 4 are amended to the extent specified in column (4) of that Schedule.