Employment Update: The Age of the Whistleblower – The Irish Story So Far
02 November 2017
While there is no shortage of anecdotal evidence, it is difficult to access hard information on the actual impact of the Protected Disclosures Act 2014 (Act) on the Irish workplace. We review the findings of a recent related survey, allegations of the Act being used in vexatious claims against employers and the Workplace Relations Commission’s experience to date.
Transparency International Ireland, a non-government organisation established to combat corruption, released the findings of a survey at its recent Integrity at Work conference. According to its findings, since the Act came into force, there has been a 115% increase in the number of calls made by alleged whistleblowers to Transparency International Ireland’s Speak Up helpline. In response to the need for legal advice for these callers, Transparency International Ireland launched its own legal advice centre in 2016. To date, Transparency International Ireland reports that its advice centre has provided free legal advice worth more than €400,000 to clients reporting wrongdoing. Interestingly, the survey reveals that during the period January 2015 to December 2016, the top three sectors in which whistleblowers reported were the health, not-for-profit and education sectors.
Is whistleblower legislation being exploited?
Chief Executive of business lobby group Irish Small and Medium Enterprises Association (ISME), Neil McDonnell recently reported an unconfirmed rumour that some employment lawyers were allegedly “coaching” their clients to exploit whistleblower protection laws. It is suspected that this practice could be employed in a bid to avail of the enhanced compensation under the Protected Disclosures Act for wrongful dismissal. If successful, up to seven years pay can be awarded by way of compensation under the Act. That compares to a maximum of two years pay under the Unfair Dismissal Acts.
Mr McDonnell called on the Workplace Relations Commission (WRC) to ensure that their staff remained alert to the possible “vexatious” use of protected disclosure rules in employment cases referred to them. In response, the WRC said it was unaware of any increase in cases referred to it under the Protected Disclosure Act 2014. Just six of the complaints referred to the WRC in 2016 invoked the Act. On the other hand, the Central Bank has reported a huge increase in the number of complaints referred to it under the Act from a solitary complaint in 2015 to 79 complaints up to mid-2017.
Based on the WRC figures, there does not appear to have been a major increase in cases referred to the commission under the Act. The expected “tsunami of cases” has not materialised to date.
The anecdotal evidence from the courts suggests that applications to the Circuit Court, particularly on circuits outside of Dublin, for injunctive relief tend to be settled. These settlements are occurring due to the risk of delay and the unfortunate increase in legal costs if applications proceed.
However, looking at the figures reported by Transparency Ireland and the concern expressed by the CEO of ISME, it is clear that there is a shared perception that the number of claims relating to alleged protected disclosures is likely to increase in the medium term. This would reflect the experience of other countries with similar legislation.
Employers should ensure that they are compliant with the Act and that they have Protected Disclosure policies in place in the increasingly likely event that an employee will make a protected disclosure.
For more information relating to the Act and formulating a whistleblowing policy for your organisation, contact a member of our Employment & Benefits team.