What is Whistleblowing?
While the concept of whistleblowing has not been defined by statute in Ireland, it is generally accepted to be the disclosure of information by an employee about perceived wrongdoing in an organisation, or the risk of such wrongdoing, to persons or bodies who the whistleblower believes are in a position to take action in respect of the disclosure.
The Statutory Context
While whistleblowers have some statutory protection on a piecemeal basis (in areas such as child protection and health and safety), there is no overarching legislative protection for whistleblowers in Ireland.
Although the courts have, in certain cases, protected employees who make disclosures in the public interest, the current situation leaves whistleblowers in many sectors liable to be found in breach of their implied duty not to disseminate the confidential information of their employer. The Whistleblowers Protection Bill 2011 (the ‘2011 Bill’) is designed to fill the gaps left by this piecemeal approach and provides for an overarching approach to whistleblowing in a similar form to the UK Public Interest Disclosure Act 1998 (the ‘PIDA’).
The main purpose of the 2011 Bill is to provide protection from civil liability (such as damages) to employees who make protected disclosures about the conduct or affairs of their employers together with protecting an employee from being penalised as a consequence of making such a disclosure.
What is a Protected Disclosure?
In order to be protected, a disclosure must pass a two-fold test, it must be made reasonably and in good faith and it must be made to a person/entity designated in the 2011 Bill.
A disclosure is protected if it relates to an allegation such as the commission of a criminal offence, failure to comply with a legal obligation, damage to the environment or endangerment of the health and safety of an individual.
To Whom Must an Employee make a Disclosure?
Ordinarily, an employee must make a disclosure to his employer. Where the employee reasonably believes that the subject of the disclosure relates to the conduct or legal responsibility of a person other than his employer, the employee may make the disclosure to that other person. The 2011 Bill lists a number of public regulatory bodies to which, in certain circumstances, it may be appropriate to make a disclosure. Such bodies include the Central Bank, the Data Protection Commissioner, the Environmental Protection Agency and the Health and Safety Authority. An employee can only make a disclosure externally, for example, to the media but only where the failure of their employer is exceptionally serious and it is reasonable for the employee to do so. The 2011 Bill sets out the factors which are taken into consideration in determining if an employee’s disclosure to an external body was reasonable in the circumstances.
How will the 2011 Bill impact Employers? The 2011 Bill as currently drafted largely reflects the provisions of the PIDA. One of the impacts of the PIDA on UK employers is that employees have relied on the PIDA in unfair dismissal proceedings arguing that the application of the disciplinary procedure and their dismissal constituted penalisation under the PIDA where their dismissal related to a protected disclosure.
In other cases, employees who allege that their employer has not dealt with their bullying and harassment complaints adequately, have blown the whistle on the employer on the basis that the employer was in breach of their legal duties.
The 2011 Bill contains a presumption that an employee acted reasonably and in good faith in making a disclosure, in proceedings before the Rights Commissioner and the Employment Appeals Tribunal. However, if an employee argues that his dismissal amounted to penalisation for whistleblowing he cannot be granted relief under both the Unfair Dismissals Acts and the 2011 Bill.
Employers will have to consider setting up an internal process to deal with employees who wish to blow the whistle on their employer. Such procedures may well include putting an internal or external confidential whistleblowing phone line in place and appointing a designated person to investigate the subject matter of a whistleblowing complaint.
At this point in time it is difficult to predict with any degree of certainty whether the 2011 Bill will be enacted, as there does not appear to be consensus in Government as to whether an overarching or sectoral approach should be adopted. There was a previous attempt to introduce protection for whistleblowers in 1999 but the Bill dropped off the Government Programme because of perceived legal complexities.
The Government does seem to recognise the importance of the role of whistleblowers and to favour their protection. The most recent evidence of such commitment is contained in the Criminal Justice Act 2011, which relates to white-collar crime. The Act, together with protecting whistleblowers, creates a new offence of failing to report business related crime which is punishable by a term of imprisonment.
Whether whistleblowers will be protected on a sectoral or overarching basis, the subject will remain a hot topic for employers and we will bring you further updates in subsequent ezines.