Susheela Math is Legal Counsellor at Transparency International Ireland.
With the World Cup upon us, it is perhaps interesting to note that the term ‘whistleblower’ is often said to originate from the practice of referees blowing whistles to draw attention to foul play. The irony is that whistleblowers themselves are often subsequently subjected to unfair treatment. Will the Protected Disclosures Act 2014 make a difference?
The Garda controversies of this year have thrown a particularly bright spotlight on ‘whistleblowing’ and public interest in the topic has probably never been higher. As if on cue, the long awaited Protected Disclosures Act 2014 (“Act”) is expected to become law this summer.
Why is the Act needed?
Whistleblowers face the dilemma of potentially risking their reputations and careers by speaking up about wrongdoing – or taking the safe option of saying nothing. The decision-making process has been particularly difficult as Ireland’s existing legislative whistleblower protection against penalisation by employers is much like a badly-sewn patchwork quilt. The provisions are contained in a number of different Acts, not all workers are covered and those who are covered have access to differing levels of protection.
In contrast, the forthcoming Act draws on best practice guidelines and aims to take a comprehensive approach similar to that taken in the UK, New Zealand and South Africa. Breaking with the sectoral approach to whistleblower protection adopted by previous Irish governments, the new law concerns ‘protected disclosures’ made by ‘workers’ in all sectors of the economy.
What is covered?
These concepts are broad: workers include contractors, agency workers and trainees; whilst protected disclosures relate to ‘relevant wrongdoings’ such as:
· criminal offences or breaches of legal obligations;
· threats to health and safety or the environment;
· miscarriages of justice; and
· improper use of public funds.
The whistleblower’s motivation in making a report is irrelevant in assessing whether it is a protected disclosure and disclosures made before the passing of the Act can be protected. Motivation can, however, impact on how much compensation is recoverable.
The Act specifies to whom a disclosure must be made if it is to be protected. It encourages ‘internal’ reporting to employers in the first instance. In certain circumstances, disclosures to others such as regulators and the media are also protected.
Protections contained within the Act include an extension of unfair dismissal law (with up to five years’ compensation), immunity from civil/criminal liability and a qualified prohibition on disclosure of identity. There is no cause of action for civil proceedings apart from defamation, where qualified privilege will apply. In addition, the legislation provides a right of tort where a detriment is suffered as a result of a protected disclosure having been made. Significantly, the legislation has been drafted widely enough to bring into scope family members of whistleblowers, who may be able to issue proceedings for damages in their own right.
Will it be effective?
It would be naïve to welcome the new law as a panacea for the penalisation, isolation, financial loss, severe stress and anxiety often suffered by whistleblowers. Whilst the OECD advised the Irish Government that it could be the strongest whistleblowing law in Europe, others have levelled serious criticisms at the Act. These include that the criteria for making ‘external’ reports are overly complex and that – more generally – the existing employment law structures are inadequate for dealing with any remedies under the Act.
It is important to acknowledge that no piece of legislation is likely to lead to cultural change by itself. Nonetheless, the Act can be seen as an important step in providing whistleblowers with the protections they deserve. It imposes positive duties on public bodies to put in place whistleblowing procedures and provide written information about them to workers. It will be in the best interests of all employers to follow suit – taking steps to comply with the new law will minimise risks of adverse litigation and loss of reputation. It could also provide employers with the opportunity to address problems within their organisations at an early stage, before they get out of hand.
The Act marks a notable shift in Ireland’s approach to exposing wrongdoing and protecting those who speak up. While it is not perfect, it is far better than anything that has gone before.
Transparency International Ireland’s Speak Up helpline has been assisting whistleblowers and witnesses of official malpractice since 2011, including the Garda whistleblowers. TII will be launching an Integrity at Work programme this summer to assist employers in facilitating supportive working environments for whistleblowers. More information can be found at www.transparency.ie.