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Enabling whistleblowers

  • Ireland
  • General

17-10-2013

New legislation is likely to have a significant impact on how employers deal with the issue of whistleblowing or ‘good faith’ disclosures by their employees. Published in July, the Protected Disclosures Bill 2013 aims to provide a consolidated framework for the protection of employees who make certain types of disclosures, placing further obligations on employers to ensure compliance.

Ironically, this coincides with a move in the opposite direction in the UK, where recent amendments in fact reduce the scope of whistleblower protection in that jurisdiction and may provide some interesting guidance to the Oireachtas before the Bill is finally passed into law.


Whistleblowing in Ireland

Whistleblowing is a term used to describe an individual reporting or disclosing a wrongdoing within an
organisation. However, employees are often reluctantto make such disclosures where they involve co-workers or superiors. Some level of whistleblower protection is therefore generally regarded as desirable so that employees are free to disclose wrongdoings within their organisation without fear of penalisation by their employer.

In Ireland, protection for whistleblowers has traditionally arisen on a piecemeal basis under separate legislative regimes relating to specific sectors. This has led to an unsatisfactory position where employees in certain sectors are protected from making disclosures which are not the subject of protection in other sectors. Moreover, the level of protection provided is inconsistent across different sectors and is, in any case, largely inadequate.

The current government committed to address these inconsistencies by putting in place a comprehensive statutory framework for the protection of whistleblowers across all sectors, as part of an overarching mandate of anti-corruption and transparency. A product of this commitment, the Protected Disclosures Bill 2013 (the ‘Bill), was published on 3 July 2013.

Key features of the Bill

The purpose of the Bill is to provide a comprehensive statutory framework for the protection of whistleblowers across all sectors. The Bill sets out the persons to whom protection applies, the specific types of disclosure which are protected, the appropriate disclosure channels and the protections available to employees. The Bill applies to all workers, not just employees.

The Bill sets out a list of specific protected disclosures. A worker may not be penalised for disclosing information about another person within his organisation in relation to:

  • the commission of an offence
  • non-compliance with a legal obligation
  • a miscarriage of justice
  • endangerment of health and safety
  • damage to the environment
  • misuse of public funds
  • mismanagement by a public body
  • concealing or destroying information relating to any of the above.

The motivation for making such a disclosure is irrelevant as long as an employee has a reasonable belief that the disclosure he is making is true. As it stands, there is no requirement that a disclosure be made in the public interest for it to be protected.

The Bill also sets out the protections given to whistleblowers. The Bill will amend the Unfair Dismissals Act 1977 so that it will be unlawful to dismiss an employee wholly or mainly because he has made a protected disclosure. A worker dismissed for making a protected disclosure will be entitled to far greater compensation in the value of up to five years’ salary.

The Bill further provides that a worker may not be penalised in any other way for making a disclosure, provides for a right of action in tort against any person who causes detriment to a worker for making a disclosure, protects for the anonymity of whistleblowers and provides immunity from civil and criminal liability in making a protected disclosure.

Implications for employers

The new law creates new causes of action against employers both under the Unfair Dismissals Act and in the civil courts.

Employers will need to be careful in how they handle disclosures to ensure they do not find themselves exposed. Employers must be able to provide an environment in which employees can voice concerns to their employer and allow those concerns to be sufficiently investigated and addressed, while at the same time protecting the identity of employees who raise concerns and ensuring that they do not suffer any detrimental treatment.

Experience of the similar UK legislation indicates that the management of poor performance or disciplinary issues can be significantly complicated by an employee raising a concern which may fall within the category of a protected disclosure. It will be important to be able to demonstrate that any sanction levied against an employee was not linked with the raising of the concern by the employee.

Given this multitude of new potential legal pitfalls, employers would be well advised to put a robust whistleblowing policy in place and, as in any other contentious employment context, be able to demonstrate that that policy is adhered to rigidly.

Any whistleblowing policy should provide procedures which give comfort to employees that their concerns will be dealt with adequately and confidentially while also promoting an environment of transparency across the business within which good faith disclosures are accepted and encouraged.

The UK position

Irish legislative reform in this area happens to coincide with reform in the UK. However, in contrast with the move in Ireland to step up whistleblower protection, the UK has sought to narrow the scope of its whistleblower legislation, which it was felt had gone too far.

In particular, the legislation has been widely interpreted by the UK courts as extending to disclosures made with no public interest element at all. This meant that employees were protected in making disclosures about breaches of individual employment contracts which had consequences for nobody but the whistleblower. This led to a high level of uncertainty as to what could constitute a protected disclosure and an excessive number of allegations.

A recent survey carried out by Eversheds in the UK demonstrates these shortcomings: 40% of employers surveyed felt that whistleblowing legislation was not working, with one-third of employers having  experienced allegations of whistleblowers being victimised for making disclosures. The survey also found that one-third of employers who experienced whistleblowing allegations believed that personal motivations for making these allegations were a factor in every case.

To address these concerns, the UK legislation has now been amended to include a requirement that a whistleblower must reasonably believe that a disclosure is in the public interest in order for it to be protected. As a consequence, it is likely that employees will no longer be protected in making disclosures relating to personal employment issues with their employer, as this would involve no public interest element. Although the Bill in Ireland similarly excludes protection of disclosures, it does not include any public interest requirement.

The timing of the UK reform is particularly ironic given that the new legislation in Ireland has been largely based on the UK model, which Minister Brendan Howlin described as the “gold standard” for whistleblower protection. It remains to be seen to what extent the Oireachtas might consider these lessons from the UK before the Bill is passed into law.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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