The Edward Snowden saga brings into sharp focus questions of when and to what extent workers with access to confidential information should, or should be permitted to, disclose that information, if they believe wrongdoing has occurred or it is otherwise in the public interest to do so. The Protected Disclosures Bill 2013 (the “Bill”), published on 3 July 2013, is part of the Programme for Government and aims, in the words of Minister Howlin, to provide comprehensive whistleblower protection across all sectors of the economy addressing what has been identified – nationally and internationally – as a significant gap in Ireland’s legal framework for combating corruption. It also addresses the recommendation in the Final Report of the Mahon Tribunal advocating pan-sectoral rather than piecemeal whistleblower protection legislation.
Piecemeal development of whistleblowing legislation
Although the concept of whistleblowing has been developing in Irish legislation for years, protection has developed on an ad hoc sectoral basis, often allied to mandatory reporting obligations. Example of specific whistleblower protections include the following:
Section 8A of the Prevention of Corruption Act 2001 provides that a person is not liable in damages in respect of communicating to an appropriate person his or her opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 may have been or may be being committed, unless the communication was made knowing it to be, or recklessly as to whether it was, false, misleading, frivolous or vexatious.
Section 59(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides that a mandatory report made in good faith by an auditor to the Garda Síochána where the accounts of the audited firm or person indicate that an offence under the 2001 Act may have been committed shall not be treated as a breach of any restriction imposed by statute or otherwise or involve the person making the report in legal liability of any kind.
Section 26 of the Employment Permits Act 2006 provides that an employer shall not penalise or threaten penalisation against an employee for making a complaint to the Gardaí or the Minister for Enterprise, Trade and Employment that a provision of the Employment Permits Act 2003 or 2006 is not being complied with.
Section 20 of the Criminal Justice Act 2011 provides that an employer shall not penalise or threaten penalisation, or cause or permit any other person to penalise or threaten penalisation, against an employee who makes a mandatory report to the Gardaí under section 19 of that Act of information which he or she knows or believes might be of material assistance in detecting or preventing the commission of a suspected white-collar offence.
Objectives of the Bill
The Bill is intended to provide a robust statutory framework within which workers can make certain disclosures in the public interest about concerns regarding potential wrongdoing in the workplace, in the knowledge that significant employment and other protections are available if the workers are penalised by their employer or suffer any detriment for making the disclosures. The Bill sets out a nonexhaustive list of examples of penalisation; the reliefs available to combat offset penalisation include immunity from prosecution and compensation. The range of protections offered to the worker should afford a secure and safe alternative to uncomfortable silence. The Bill provides for a review of its provisions five years after enactment.
“Workers”: The safeguards are extended, in line with international best practice, to “workers”. “Workers” are widely defined, to include employees, contractors, volunteers, temporary workers, former employees, apprentices, trainees, certain individuals on work experience, agency workers, members of An Garda Síochána and the Defence Forces and civil servants. It includes individuals in both the public and private sectors. It excludes certain individuals working in a professional or business capacity for a client or customer.
Protected disclosures: A worker may make a protected disclosure of “relevant information”. Information is relevant if, in the reasonable belief of the worker, it tends to show one or more “relevant wrongdoings”, and it came to the attention of the worker in connection with the worker’s employment. The protection remains available if the information disclosed, on examination, does not reveal wrongdoing. However deliberate false reporting will fail the “reasonable belief ” test and is not protected.
The Bill sets out a list of “relevant wrongdoings”. These include the commission of an offence; failure to perform a legal obligation; a miscarriage of justice; endangerment of people’s health and safety; environmental damage; improper use of public money and concealment of any of these matters. They include such matters occurring outside the State.
There are certain exclusions, for example where it is the function of the worker or his or her employer to detect, investigate or prosecute the wrongdoing and it does not consist of or involve an act or omission by the employer (this in particular protects confidentiality around investigations by Gardaí and other investigative agencies). There are also exclusions from the category of protected disclosure where a claim of legal professional privilege could be maintained in relation to the information.
The motivation for making a disclosure is irrelevant to whether or not the disclosure is protected. There is a presumption that a disclosure is protected until the contrary is proved. This provision has retrospective effect so that a disclosure made before the Bill is enacted may be protected.
Stepped disclosure regime
The Bill seeks to incentivise internal reporting, however a “stepped” approach is provided for where disclosure to the employer is neither appropriate nor possible.
Disclosure to an employer or responsible person: The Bill aims to encourage that the vast majority of disclosures are made in the first instance to the employer or another responsible person. It is appropriate to disclose to a responsible person where the worker reasonably believes that this person has legal responsibility for the relevant wrongdoing or the wrongdoing relates solely or mainly to that person’s conduct. A disclosure will be treated as a disclosure to an employer where it is done in accordance with a procedure authorised by the employer, such as an internal disclosure or whistleblowing procedure.
Disclosure to a prescribed person: A worker may make a protected disclosure to a prescribed person. The Minister for Public Expenditure and Reform may by order and by reference to defined criteria prescribe certain appropriate persons to be recipients of disclosures of relevant wrongdoings. The worker must reasonably believe that the wrongdoing falls within the description of matters to which the person is prescribed and that the information disclosed and any allegations contained in it are substantially true.
Disclosure to a Minister: A protected disclosure may be made by a worker from a public body to a Minister exercising any function relating to the public body.
Disclosure to a legal advisor: A protected disclosure may be made by a worker in the course of obtaining legal advice from a barrister, solicitor or trade union official.
Disclosure in other cases: A worker may make a protected disclosure in other circumstances if the worker reasonably believes that the information disclosed and any allegation contained in it are substantially true. The disclosure must not be made for personal gain. This excludes any reward payable under or by virtue of any enactment. In all the circumstances of the case, it must be reasonable for the worker to make the disclosure. One or more of the following conditions must also be satisfied:
- at the time the worker makes the disclosure, the worker reasonably believes that he or she will be subjected to penalisation by the employer if a disclosure is made in circumstances other than to a legal adviser;
- where no relevant person is prescribed 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 to an employer or responsible person;
- the worker has previously made a disclosure of substantially the same information other than to a legal adviser;
- the relevant wrongdoing is of an exceptionally serious nature.
The Bill also sets out certain criteria which may be considered in determining whether it was reasonable in all of the circumstances of the case for the disclosure to be made. Depending on the circumstances, these include:
- the identity of the recipient of the disclosure;
- the seriousness of the relevant wrongdoing;
- whether the wrongdoing is continuing or likely to occur again;
- any breach of confidentiality;
- in respect of a previous disclosure, any previous action taken or which might reasonably be expected to have been taken by the recipient of the disclosure, and
- whether a worker complied with any procedures authorised by an employer when making a disclosure to that employer or another responsible person.
A subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.
Restrictions on disclosure of certain information
The Bill provides for certain restrictions on the disclosure of information where disclosure may prejudice effective law enforcement or public safety or security systems. There are also restrictions in the area of security, defence, international relations and intelligence with the requirement in certain circumstances for the disclosure to be made to the office of Disclosures Recipient established under the Bill (intended to be a serving or retired High Court judge).
Protections for the Worker
The Unfair Dismissals Act 1977 would be amended to facilitate the new disclosure regime. Under that Act as intended to be amended by the Bill the worker will have the following protection:
- protection from penalisation;
- compensation of up to a maximum of five years’ remuneration could be awarded in the case of an unfair dismissal for having made a protected disclosure;
- limitations relating to the length of service that usually apply in the case of Unfair Dismissals would be set aside in the case of protected disclosures;
- if a person causes detriment to another person because that 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; ‘detriment’ is defined to include coercion, intimidation, harassment, discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment), injury, damage or loss, and threat of reprisal;
- whistleblowers will benefit from civil immunity save in respect of defamation but will have qualified privilege under the Defamation Act 2009;
- 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;
- 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, must take all reasonable steps to avoid disclosing to another person any information that might identify the worker who made the protected disclosure. The worker has a right of action in respect of any loss suffered as a result of non-compliance here. However, the restriction does not apply where there is a reasonable belief that the worker does not object to the disclosure of this information. This is also the case where there is a reasonable belief that disclosure is necessary for the effective investigation of the relevant wrongdoing concerned, the prevention of serious risk to the security of the State, public health, public safety or the environment, the prevention of crime or prosecution of a criminal offence, or is otherwise necessary in the public interest or is required by law, and
- there are provisions for reduction in compensation where an employee is dismissed following a protected disclosure and the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure.
Redress may be secured through a Rights Commissioner. A complaint should be brought within six months though this may be extended by another six months in exceptional circumstances. A number of offences are included in the Bill where there is a wilful lack of cooperation with the procedure.
However, certain categories of worker are excluded from this process. These include members of the Defence Forces and An Garda Síochána. Instead, the Garda Síochána Act 2005 would be amended to require the Minister for Justice to make regulations governing procedures for the making of protected disclosures and the securing of redress by members of An Garda Síochána following a protected disclosure. The Ombudsman (Defence Forces) Act 2004 would be amended to provide for the consideration by the Ombudsman for the Defence Forces of complaints made by members of the Defence Forces in relation to penalisation following the making of a protected disclosure.
There are restrictions on the exercise of multiple remedies in respect of a disclosure.
Other relevant provisions
Public body procedures: Public bodies would be required to establish and maintain procedures for dealing with protected disclosures made by workers who are or were employed by the public body.
No contracting out: The Bill expressly states that any provision in an agreement is void in so far as it purports to exclude the application of the Bill or an action for breach of contract in respect of anything done in consequence of the making of a protected disclosure.
Amendments to other legislation: The Bill makes amendments to various pieces of primary and secondary legislation to take into account the protection afforded by the Bill.
No limit to existing immunities: The Bill does not limit any existing privileges, immunities or defences, statutory or otherwise.
IBEC has expressed concerns that given the broad application of the Bill, there is potential to add serious administrative and litigious burdens on employers. They believe that the ‘stepped’ disclosure channels leave the employer exposed without having first had the opportunity to address the subject matter of the disclosure. A contrary view is that this regime would assist employers as wrongdoing would be disclosed in a manageable way and only where other routes are not viable. The Oireachtas, Finance, Public Expenditure and Reform Committee noted that Ireland’s international reputation has been damaged by not having such legislation in place. Despite the existing levels of protection available, Risk Management International has described the Bill as “timely and badly needed”.
If the Bill is enacted, potential whistleblowers will still face difficult judgements about disclosure of suspicions and concerns, because wrongly making "unprotected disclosures" may expose them to disciplinary action and action for breach of confidentiality. However, the Protected Disclosures Bill may, if enacted, bring necessary consistency to the protections available to whistleblowers in Ireland regardless of the sector or circumstances involved and may help support and promote a culture of public accountability and integrity which values, supports and acts upon concerns raised.