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Whistleblowing Developments

02 March 2012

The Bill emanates from a commitment in the Programme for Government to enact legislation to protect whistleblowers who speak out against wrong doing or cover ups by an employer. 

The Bill will provide for a single overarching piece of legislation, which is to be welcomed, as previously the Oireachtas had adopted a sectoral approach protecting whistleblowers that blew the whistle in discreet areas such as those of health, competition and consumer protection.

The Bill does not confine itself to protecting persons in the traditional employer/employee relationship but instead it uses the term “worker”, the definition of which is sufficiently broad to include persons such as contractors, trainees, agency staff and home workers. 

What are the objectives of the Bill?

The Bill, when enacted, is aimed at: 

  • protecting workers from penalisation or reprisal where they make a disclosure of information, which comes to their attention in the workplace and which falls within the definition of a “protected disclosure” (see below);
  • providing for a number of distinct disclosure channels for workers to use for the purpose of whistleblowing, to include those which are internal within the employment, to relevant bodies designated in the Bill (such as the Revenue Commissioners or National Employment Rights Authority) and also to, for example, the media, An Garda Síochána etc.  The worker is subject to different evidential thresholds depending on which disclosure channel he uses with the objective of encouraging workers to use the internal whistleblowing channels in the employment or to relevant bodies, in preference to whistleblowing externally in the first instance (see below);
  • providing redress for workers who suffer a detriment as a consequence of having made a “protected disclosure”.

What is a Protected Disclosure?

In order for a disclosure of information to fall within the definition of a “protected disclosure”, the worker needs to be in a position to demonstrate that he reasonably believed that the information disclosed by him shows, amongst others, that:

  • a criminal offence is being committed;
  • that a person is failing to comply with a legal obligation;
  • that the environment is being damaged;
  • that a person’s health and safety is being endangered;
  • that information relating to a protected disclosure is being concealed.

The definition of a protected disclosure extends to acts which have occurred in the past or are likely to occur in the future.

A disclosure loses its classification as a protected disclosure where the person who makes the disclosure does so knowing that the disclosure is false or misleading or where the disclosure is made recklessly.

What factors influence where a worker makes a Protected Disclosure?

There are different evidential thresholds which an employee has to reach in electing to make a disclosure to either his employer, a relevant body or to some other external entity.

  • where a worker makes a disclosure to an employer, he must make the disclosure in good faith;
  • where the disclosure is made to a relevant body, the worker must meet the higher evidential burden in that he must reasonably believe the disclosure to be substantially true;
  • where a disclosure is made externally other than to a relevant person, such as the media or An Garda Síochána, the worker must be in a position to demonstrate that the disclosure was not made for personal gain, that he reasonably believed that he would be subject to penalisation or detriment if he made the disclosure to his employer; that there was no relevant body prescribed for the purpose of making the disclosure or that he had previously made a disclosure of substantially the same information and no action was taken on foot of such a disclosure.

Conclusion

The sectoral approach of the Irish Government to whistleblowing to date has resulted in a process which is confused and fragmented.  Currently, any one employer might have to deal with whistleblowing disclosures under multiple statues, ranging from those dealing with work permits to those addressing the protection of the environment.  It is not clear what will happen to the sectoral approach, if and when an overarching Whistleblowing Bill is enacted and this matter will have to be addressed by the Oireachtas to avoid complicating the whistleblowing process even further.

The good news is that there now appears to be a firm commitment on the part of Minister Howlin to establish a cohesive and comprehensive statutory framework to protect whistleblowers.  For this reason, it is advisable that employers start considering the type of internal mechanisms they will put in place to deal with whistleblowing complaints and to develop an organisational culture which supports whistleblowing as a core element of corporate risk management.

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The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York. © Copyright Mason Hayes & Curran 2012. All rights reserved.
 

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