Protected Disclosures Bill 2013

The lack of a statutory framework for whistleblower protection has been repeatedly cited, both at home and abroad, as a significant gap in Ireland’s anti-corruption laws. Previous governments have developed the legislation surrounding whistleblower protection by a piecemeal, sector-by-sector basis. However, with the publication of the Protected Disclosures Bill 2013, the Government is now introducing a comprehensive, pan-sectoral legislative framework for the protection of whistleblowers – fulfilling its commitment to such protections in the Programme for Government and in the recommendations of the Final Report of the Mahon Tribunal.

The area of whistleblower protection has been developing in Irish law for a number of years. Various provisions were included in legislation governing specific sectors of the economy outlining narrow whistleblower protections, often coupled with mandatory reporting rules. The recent enactment of the Central Bank (Supervision and Enforcement) Act 2013 represents the most recent of these ad-hoc developments in our whistleblower protection laws.

In addition to the domestic development of the law in this area, Ireland is also following the lead of the UK in whistleblower protection. The Public Interest Disclosure Act 1998 was introduced in the aftermath of a number of financial scandals. The need for amendments to the initial legislation have provided a number of useful lessons for the Irish legislature, particularly in the amendment requiring for the disclosure to be in the public interest in order for the worker to be eligible for the protection of the legislation.

The Bill contains a number of features informed by the experience of the UK government in legislating in this area, as well as by previous ad hoc domestic developments. A number of these provisions have a particular impact on the employment relationship and add a number of obligations on the employer in this jurisdiction. These include that:

• Workers who make protected disclosures regarding potential wrongdoing are protected from penalisation by their employer and from suffering any detriment as a result of the disclosure. Certain individuals are excluded from the protection of this legislation – for instance, those who work in a professional or business capacity for a client or customer;
• “Workers” are defined as employees, contractors, agency staff, trainees and state employees, such as members of the Defence Forces, An Garda Siochána and civil servants;
• “Relevant Information” is defined as information, in the reasonable belief of worker, tends to show a relevant wrongdoing which came to the attention of the employee in the course of their employment;
• “Relevant Wrongdoing” may include the commission of an offence, failure to comply with legal obligations (but excluding those arising under contracts of employment), the endangerment of the health and safety of any individual, a miscarriage of justice or the unlawful use of public funds;
• Disclosures are presumed to be protected until proven otherwise, and there is no “good faith” requirement to qualify for the protection of the legislation (provided the worker shows they had a reasonable belief of potential wrongdoing). This renders the worker’s motivation behind the protected disclosure irrelevant.

The Unfair Dismissals Act 1977 is also to be amended by the Bill. These amendments include:

• Dismissal of a worker for making a protected disclosure is grounds for a claim for unfair dismissal;
• The maximum compensation payable for a worker who was a victim of unfair dismissal for making a protected disclosure is to increase from 104 to 206 weeks’ remuneration. This is also the case for workers who are penalised (or threatened with penalisation) for making protected disclosures;
• Where a worker suffers a detriment as a consequence of their protected disclosure, the worker shall have cause for action in tort against whoever caused that detriment;
• Whistleblowers will also benefit from civil immunity with the exception of defamation (where they will benefit from a qualified privilege under the Defamation Act 2009).

The identity of the whistleblower is protected under the Bill. Furthermore, the person to whom the protected disclosure was made must take all reasonable steps to ensure any information that may reveal the identity of the whistleblower is not disclosed. However, circumstances where the identity of the whistleblower may be disclosed do exist, including where the whistleblower agrees to the disclosure of their identity, as well as other defined circumstances.

Other relevant provisions the Bill include compelling public bodies to establish procedures for handling protected disclosures, the prohibition upon clauses that preclude the application of the Bill or provide for an action for breach of contract regarding the making of a protected disclosure, as well as amendments to other pieces of primary and secondary legislation. Furthermore, the Bill has no effect on existing immunities, privileges or defences.

There are a number of practical implications to the publishing of this Bill, many of which have been previously seen in the UK, where employers developed internal procedures for handling such disclosures to ensure the apparent problems were fixed before they became public. IBEC has expressed concern that this will place an administrative and legal burden on employers. There are still some practical concerns for would-be whistleblowers. For instance, making an “unprotected disclosure” may expose the worker to potential disciplinary action.

Nonetheless, if this Bill is enacted it will provide a much-needed uniformity across sectors to the whistleblower protection laws in this jurisdiction and will do much to restore Ireland’s integrity and international esteem in combating corruption.