Proposed Protection for Whistleblowers

There has been a plethora of allegations of potential wrongdoing by the management of government agencies/bodies in recent months including, most recently, allegations from a Garda whistleblower in relation to inappropriate cancellation of penalty points.

Many commentators have questioned why, given the seriousness of the allegations that have emerged over previous months, more employees, who may have been aware of any wrongdoing, have not come forward to expose the wrongdoing.

One explanation is that, given the lack of comprehensive whistleblowing legislation in Ireland, if the employee had disclosed the potential wrongdoing, he or she would have been in a vulnerable position and may have been subject to legal action by his or her employer for breach of confidence or may have been penalised (including dismissal) at work.

In an effort to address this matter, the Government published the Protected Disclosures Bill 2013 on 3 July 2013. The Bill aims to promote the disclosure of information relating to wrongdoing in the workplace by offering protection for all workers against penalisation in circumstances where they make a protected disclosure.

Currently whistleblowing protection exists on a “sectoral” basis and protection for whistleblowers can be found in various pieces of legislation including the Competition Act 2002, the Employment Permits Act 2006 and the Ethics in Public Office Act 2001. The publication of the Bill last year marked a move from the sectoral approach and proposed an all-encompassing piece of legislation providing certain protections for all whistleblowers in respect of “protected disclosures” irrespective of the sector or issue concerned.

What disclosures are protected by the Bill?

A “protected disclosure” is a disclosure of relevant information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.  In turn, “relevant wrongdoings” are defined in an exhaustive list and include:

• the commission of an offence
• a miscarriage of justice
• non-compliance with a legal obligation
• health and safety threats
• misuse of public monies
• mismanagement by a public official
• damage to the environment
• concealment or destruction of information relating to any of the foregoing

Importantly, the motivation for making the disclosure is irrelevant. This is a significant change from the draft Bill published last year which required that the disclosure was made in good faith.  This change was introduced on foot of the UK experience of whistleblowing. The good faith requirement in the UK had led to the development of scope for legal argument concerning the motive of the whistleblower. In its place, the Bill contains a new provision allowing for the compensation payable under the legislation to be reduced by up to 50% where the investigation of the relevant wrongdoing concerned was not the only or main motivation for making the disclosure.

Who can the disclosures be made to?

The Bill provides a number of separate channels on a tiered basis for those who wish to make a protected disclosure.  Different evidential burdens apply depending on the disclosure channel the worker chooses as follows:

• Internal: An employee may make a protected disclosure to their employer where they reasonably believe that the information shows or tends to show wrongdoing.
• Prescribed persons: The Minister may prescribe a wide list of prescribed persons appropriate to receive and investigate matters arising from disclosures. Where a worker chooses to disclose in this manner they must reasonably believe the information disclosed, and any allegation contained in it, to be substantially true.
• Minister: An employee employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.
• Legal Adviser: A disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union is protected.

Disclosures to the media

The Bill also provides for disclosure in other circumstances, that is, disclosure potentially into the public domain such as to the media, where the standard for reporting is significantly higher. In order for such a disclosure to be protected the worker must:

• reasonably believe that the information disclosed is substantially true
• not make the disclosure for personal gain
• believe that the making of the disclosure is in all the circumstances reasonable

In addition one or more of the following conditions must be met:

• At the time of making the disclosure, the worker must reasonably believe that they will be subject to penalisation and detriment by their employer if the disclosure was made to the employer.
• In a case where there is no prescribed person in relation to the relevant wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if the disclosure is made to the employer.
• The worker has previously made a disclosure of substantially the same nature to either their employer or a prescribed person and no action was taken.
• The relevant wrongdoing is of an exceptionally serious nature.

In determining whether the disclosure is in all the circumstances reasonable, a number of factors should be taken into consideration including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether the disclosure is made in breach of a duty of confidentiality. It will be interesting to see whether this avenue is used by employees of the banks during any Banking Inquiry that may be convened.

What protections are afforded to whistleblowers?

The Bill provides a whistleblower with six specific protections:

1. Protection from dismissal for having made a protected disclosure. If an employee is currently dismissed as a result of whistleblowing, the employee’s claims lies to the Employment Appeals Tribunal under the Unfair Dismissal Acts 1997-2011.
2. Protection from penalisation by their employer.
3. Civil immunity from actions for damages and a qualified privilege under defamation law.
4. Right of action in tort where a whistleblower or a member of their family experiences coercion, intimidation, harassment or discrimination at the hands of a third party.
5. Protection of their identity subject to certain exceptions. 6. Immunity from criminal liability for making a protected disclosure.
6. The protections also remain available if the information disclosed does not reveal wrongdoing. However, deliberate false reporting will not meet the reasonable belief test and is accordingly not protected.

Until such time as the Bill is enacted, McDowell Purcell Solicitors advises that it is prudent for employers to put a whistleblowing policy in place to encourage employees to raise concerns internally in the first instance in a transparent and confidential manner before such matters find their way into the media.