The Government published the long awaited Protected Disclosures Bill 2013 on 3 July last.  The Bill, more commonly known as the "Whistleblowers' Bill", aims to promote the disclosure of information relating to wrongdoing in the workplace by offering protection for all workers against penalisation in circumstances where they make a protected disclosure. On a broader lever, it is part of an anti-corruption mechanism and a key ingredient in the promotion of a culture of public accountability and transparency.

The immediate impact will be that public sector employers will need to publish and put in place policies and procedures to deal with whistleblowing. For other employers, it is advisable that they start taking the appropriate steps to establish a whistleblowing policy appropriate for the needs of their business.

When enacted, the Bill will provide a single overarching piece of legislation. Currently whistleblowing protection exists on a sectoral basis in areas such as health and competition. This makes the current framework cumbersome and unwieldy.

Analysis

Who is protected?

The Bill protects workers in all sectors. The concept of "worker" is widely defined and extends to employees, contractors, trainees and agency staff.

What is a "protected disclosure"?

This is also widely defined. It means disclosure of relevant information, which in the reasonable belief of the worker, tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.

"Relevant wrongdoings" are defined in an exhaustive list and include the following:

  • the commission of an offence;
  • a miscarriage of justice;
  • non-compliance with a legal obligation;
  • health and safety threats;
  • misuse of public monies;
  • mismanagement by a public official;
  • damage to the environment; or
  • concealment or destruction of information relating to any of the foregoing.

It is noteworthy that the motivation for making the disclosure is irrelevant. This is a material change from the Draft Heads of the Protected Disclosure in the Public Interest Bill published in February 2012. This change has been introduced on foot of the UK experience of whistleblowing. The good faith requirement had led to the development of scope for legal argument concerning the motive of the whistleblower. This is understood to have led to a significant obstacle impeding the effective working of the regime. In its place there is a new provision allowing for the reduction of compensation payable under the legislation to be reduced by up to 50 % where the investigation of the relevant wrongdoing concerned was not the only or main motivation for making the disclosure.

Where there is uncertainty as to whether a disclosure is a "protected disclosure" it is presumed, unless the contrary is proved, that the disclosure is protected.

The Bill provides for retrospective effect, so that a disclosure made before the date of its enactment may be a protected disclosure.

Disclosure Channels

The Bill provides a number of distinct channels for those who wish to make a protected disclosure, including: to an employer or other responsible person; to a prescribed person; to a Minister; to a legal adviser; or to other persons. Different evidential burdens apply depending on the disclosure channel the worker choses. This tiered approach is designed to encourage the worker to report to his employer in the first instance.

  1. Internal

A worker may make a protected disclosure to his employer where he/she reasonably believes that the information shows or tends to show wrongdoing or if the worker reasonably believes that the wrongdoing relates to the conduct of some person other than his/her employer, or to something for which some other person has legal responsibility then the disclosure can be made to that person.

  1. Prescribed Persons

The Bill provides for the Minister to prescribe a wide list of "prescribed persons" (e.g. regulatory bodies) whose roles and responsibilities as defined by law and are in his opinion appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Where a worker choses to disclose in this manner he/she must reasonably believe the information disclosed, and any allegation contained in it, to be substantially true.

  1. Minister

A worker employed in a public body may make a protected disclosure to the sponsoring Department rather than to their employer.

  1. Legal Adviser

A disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union is protected.

  1. Other disclosures

There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain, (such as to the media) where the standard for reporting is significantly higher.

In order for such a disclosure to be protected the worker must:

  • reasonably believe that the information disclosed is substantially true;
  • the disclosure is not made for personal gain; and
  • the making of the disclosure is in all the circumstances reasonable.

In addition one or more of the following conditions must be met:

  1. at the time of making the disclosure the worker reasonably believes that he/she will be subject to penalisation and detriment by his/her employer if the disclosure was made to the employer;
  2. in a case where there is no prescribed person in relation to the relevant wrongdoing, the worker reasonably believes that evidence will be destroyed/concealed if the disclosure is made to the employer;
  3. the worker has previously made a disclosure of substantially the same nature to either his employer or prescribed person and no action was taken, and
  4. the relevant wrongdoing is of an exceptionally serious nature.

In determining whether the disclosure is in all the circumstances reasonable, regard shall be had to a number of factors including identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether the disclosure is made in breach of a duty of confidentiality.

Security, intelligence, defence international relations and law enforcement

There are special arrangements for disclosures relating to law enforcement matters and to disclosures that could adversely affect Ireland's security, defence or international relations.

What are the protections?

The Bill provides a whistleblower with 6 specific protections:

  1. protection from dismissal for having made protected disclosure;
  2. protection from penalisation by the employer; civil immunity from actions for damages;
  3. civil immunity from actions for damages and a qualified privilege under defamation law;
  4. right of action in tort where a whistleblower or a member of his family experiences coercion, intimidation harassment or discrimination at the hands of a third party;
  5. protection of his/her identity (subject to certain exceptions); and
  6. immunity from criminal liability for making a protected disclosure.

The protections also remain available if the information disclosed on examination does not reveal wrongdoing. Deliberate false reporting will not meet the reasonable belief test and is accordingly not protected.

Public sector bodies to establish and publish internal procedures

All public sector organisations must establish and publish internal procedures for protected disclosures.

Contracting out

Any contractual clause purporting to limit the operation of the Act and to preclude a worker from making a protected disclosure is void.

Other points of note

Compensation of up to 5 years' remuneration can be awarded in an unfair dismissals case for having made a protected disclosure. Service limitations that usually apply in the case of unfair dismissals are set aside in the case of protected disclosures.

Comment

It is anticipated that the Bill will be enacted in the autumn. In the meantime employers should start reviewing their internal policies and procedures with a view to putting in place a robust whistleblowing policy. This policy should be designed to deal with any whistleblowing complaints and support the development of a business ethos which regards whistleblowing as an integral part of its risk management strategy.

Link to Bill and explanatory memorandum.