The long awaited draft “whistleblowers” legislation (the Protected Disclosures Bill 2013) has finally been published, and will no doubt be the subject of much scrutiny and discussion between employer and employee groups before it is passed. The Bill follows on from the enactment of The Central Bank (Supervision and Enforcement) Act 2013 which contains whistle blower protection for notifications to the Central Bank.
While Ireland was some way behind the UK in enacting general legislation for the protection of whistleblowers, the time may have been to its benefit, given that the UK had to amend its legislation last month to clarify that relevant disclosures would have to be limited to those made in the public interest. (Prior to this, employees in the UK who made disclosures about a breach of an individual employment contract were protected. As such, Irish employers can take some comfort that the proposed legislation, when enacted, will not open the floodgates for individual complaints about terms and conditions of employment).
The Bill has many features and affects many areas of life in general (for instance public office, corruption, and criminal justice). However, there are notable provisions which will affect the employment relationship and will impact employers in Ireland, which include the following:
- “Workers” who make protected disclosures regarding potential wrongdoing that has come to their attention in the workplace are protected from being penalised by their employer, or from suffering any detriment.
- The term “worker” includes employees, contractors, agency staff and trainees. It also includes state officials, members of An Garda Siochána, Defence Forces and civil servants.
- A disclosure of “relevant information”, which is information that, in the reasonable belief of the worker, tends to show a relevant wrongdoing, and which came to the attention of the worker in connection with his/her employment is protected.
- A 'relevant wrongdoing' may include commission of an offence, failure to comply with legal obligations (but not those which arise under the contract of employment), the endangerment of the health and safety of any individual, a miscarriage of justice and/or the unlawful use of public funds.
- Disclosures are presumed to be protected until the contrary is proven. Furthermore, there is no good faith requirement for the protection to apply, provided a worker can show that he/she had a reasonable belief of potential wrongdoing. In this regard a worker’s motivation for making a disclosure is irrelevant.
- The Unfair Dismissals legislation is amended by the Bill, which provides that the dismissal of an employee for making a protected disclosure (‘whistleblowing’) will be a grounds for a claim of unfair dismissal. In general terms this does not significantly change things. However, the maximum amount of compensation payable by an employer in the case of an unfair dismissal for whistleblowing is increased from 104, to 260 weeks remuneration, which is a very significant increase in potential liability for an employer. This is also the maximum compensation payable to an employee who is penalised (or who had been threatened with penalisation) for whistleblowing, even if not dismissed.
- The Bill also provides that where an employee suffers detriment (to include coercion, harassment, discrimination, or adverse treatment in relation to employment (or prospective employment), injury, damage or threat of reprisal), he/she will have a cause of action in tort against the person who has cause that detriment. This will give a definitive focus to bullying and harassment personal injuries claims also.
- In contrast to the above provision, whistleblowers are given civil immunity from actions for damages and can benefit from protection under defamation law.
- Significantly, the identity of a whistleblower is also protected in the Bill, to the extent that a person to whom a protected disclosure is made (which in some cases is the employer) must take all reasonable steps to avoid disclosing any information which might reveal the whistleblower’s identity. Whistleblowers may agree to the disclosure of their identity, or in other defined circumstances their identity may be divulged.