The Protected Disclosures Bill 2013
The Protected Disclosures Bill 2013 (the ‘Bill’) is a welcome replacement to the existing sectoral approach to whistleblowing law in Ireland. It completed its passage through the Seanad on the 20th November 2013 and fulfils a commitment in the programme for Government to introduce a single overarching framework for the protection of workers in the public, private and non-profit sectors.
The necessity of this legislation has been highlighted recently by the furore surrounding the disclosures made by Garda whistleblowers John Wilson and Maurice McCabe in relation to the termination of penalty points by members of An Garda Síochána in illegitimate circumstances. The treatment of these whistleblowers since they made their disclosures has been one of contempt. Both whistleblowers were allegedly subjected to unwarranted formal and informal sanctions by colleagues and Garda management, namely, denial of access to the Pulse system unless supervised or authorised by a senior officer; denial of access to the confidential recipient without prior authorisation (prior to the confidential recipient’s dismissal); unannounced visits by Gardaí to the family home of one of the whistleblowers; unwarranted stop and search of one of the whistleblowers whilst on duty; repeated and unsolicited calls to a whistleblower’s mobile whilst on leave by a senior Garda; and false allegations made publicly that the whistleblowers reports to the confidential recipient were made anonymously and “that therefore they were made unlawfully”. Former Garda John Wilson was also subjected to harassment and intimidation, most notably, the tying of a rat to the front door of his family home in the middle of the night. Further, Garda Commissioner Martin Callinan’s description of the acts of the whistleblowers as “disgusting” during his evidence to the Public Accounts Committee sent a very clear message.In addition, the slur on Sergeant Maurice McCabe by Minister Alan Shatter in the Dáil, that McCabe had failed to comply with Assistant Commissioner John O’Mahoney’s inquiry into the penalty points controversy, when in fact he was never approached and questioned during the inquiry, to the disbelief of McCabe, has yet to be rectified by Minister Shatter.
Currently in Ireland there is a sectoral approach to whistleblowing law. This approach involved the inclusion of whistleblowing provisions in different pieces of legislation, such as, theProtection for Persons Reporting Child Abuse Act 1998, the Prevention of Corruption (Amendment) Act 2001, the Competition Act 2002 and the Employment Permits Act 2006. As a result of this sectoral approach there was a patchwork of whistleblower protections, whereby the provisions were fragmented and did not provide protection to everyone.The Bill, on the other hand, provides a generic approach to whistleblowing law and aims to protect ‘workers’ in all sectors who disclose information that, in their reasonable belief, tends to show a relevant wrongdoing. The information must come to their attention in connection with their employment.
The definition of ‘worker’ in the Bill is quite broad and covers employees, former employees, temporary employees, inters, trainees, contractors, agency staff, and consultants. Volunteers had originally been omitted from the legislation having regard to the lack of a contractual relationship between persons providing voluntary services and employers. However, during its passage through the Seanad, the legislation was amended to cover volunteers.
The scope of ‘relevant wrongdoing’ is also quite comprehensive and includes: offences; failure to comply with legal obligations (excluding the workers terms of employment); miscarriages of justice, health and safety; environmental damage; unlawful or improper use of public money; an act or omission by a public body that is oppressive, discriminatory, grossly negligent or constitutes gross management; or if information in relation to any of the above is concealed or destroyed. A breach of the workers terms and conditions of employment are excluded so as to prevent the Bill from being used as an alternative to existing grievance procedures for disputes on employment contracts.
In order to avail of the protections under the legislation, the worker must comply with the stepped disclosure regime provided by the legislation. A worker is incentivised to make the disclosure internally first to either their employer or other responsible person. This channel is the least onerous for the worker as there are very few conditions attached to it. The worker also has the option to make the disclosure externally to either a person prescribed by the Minister or if a worker is employed by a public body, to a Minister. Information may also be disclosed by the worker to a legal advisor in the course of obtaining legal advice from a barrister, solicitor or trade union official. In order to disclose the information outside of these channels, however, there are more stringent conditions that must be met. For example, the information disclosedwill have to be substantially true, the disclosure must not be for personal gain, there is a risk the evidence will be destroyed or the matter is one of an exceptionally serious nature.It isanticipatedthat the simplest form of disclosure, disclosure to an employer, will be availed of most frequently.
If having made a protected disclosure the worker experiences whistleblower reprisal, the legislation provides protection for the worker in this regard. ‘Penalisation’ is defined under the Bill as, “any act or omission that affects a worker to the worker’s detriment, and in particular includes (a) suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) the imposition or administering of any discipline, reprimand or other penalty (including financial penalty), (e) unfair treatment, (f) coercion, intimidation or harassment, (g) discrimination, disadvantage or unfair treatment, (h) injury, damage or loss, and (i) threat of reprisal. This definition of ‘penalisation’ is clearly very extensive. A worker alleging penalisation would find it hard not to fit any adverse treatment experienced by them into this definition.
There is no requirement that the disclosures be made in good faith. The UK recently abolished the test of good faith for disclosures made under the Public Interest Disclosure Act 1998 due to a history of legal and practical difficulties for the courts, employers and workers, in absence of a definition of good faith under the legislation. Now, under the UK legislation, if a disclosure is not made in good faith, an award for unfair dismissal for those who make a protected disclosure will be reduced by 25 per cent. A similar provision has been included in the Irish legislation which will allow for compensation to be reduced by up to 50 per cent where the investigation of the relevant wrongdoing was not the sole or main motivation for making the disclosure by the worker. However, as protection is afforded to “reasonable belief” disclosures, disclosures that ultimately prove to be wrong will be covered. This protection will not apply, however, to false disclosures deliberately made, thus protecting employers from malicious claims, a provision which will no doubt be welcomed by employers’ groups.
A range of protections are included in the Bill for workers who are penalised for making a protected disclosure. Quite notably, workers will be protected from dismissal under the Unfair Dismissal Act 1977 from the first date of their employment, thus recognising the fact that new employees are often the ones who blow the whistle. Compensation of up to a maximum of 5 years remuneration may be awarded to the worker for an unfair dismissal. This exceeds the normal maximum compensation of two years remuneration for unfair dismissal.
The worker will also have a cause of action in tort for detriment suffered as a result of making a protected disclosure. This protection extends to third parties, such as family members, who may suffer a detriment due to the worker having made a protected disclosure. Further protection exists under the Bill to the extent that the worker will be immune from civil and criminal liability for the making of a protected disclosure. This includes benefitting from qualified privilege under the Defamation Act 2009.
Following its passage through the Seanad, the Bill has been amended so as to provide for interim relief for a worker pending the outcome of a full unfair dismissal hearing.This provision is intended to ensure that a person will not suffer penalisation whilst they are waiting for the full hearing of their case.
Special provisions have been included in the legislation to address disclosures that could adversely affect the State’s security, defence or international relations. Disclosures can only be made in these circumstances to an appointed ‘disclosures recipient’. Further, special regulations will be developed to deal with disclosures made by members of An Garda Síochána. Additionally, the Ombudsman (Defence Forces) Act 2004 will be amended to allow the Defence Forces Ombudsman to receive and investigate protected disclosures from members of the Defence Forces.
Minister Brendan Howlin has requested that the Labour Relations Commission prepare a statutory code of practice that will set out practically how a disclosure might be made and how an employer ought to handle such a disclosure upon its receipt. It remains to be seen whether this code will be published at the same time as the legislation.
The Bill is now at committee stage in the Dáil and according to Fine Gael Chairman Charlie Flanagan, it is expected to be enacted “within a matter of a couple of months.”The OECD has advised the Irish Government that this whistleblowing law could be the strongest in Europe. With the implementation of a robust legal regime it is hoped that this will encourage those who have information relating to alleged wrongdoing to disclose this information in the confidence that they will not face severe personal and professional repercussions. The disclosure of such information will undoubtedly lead to the prevention, investigation and prosecution of wrongdoings that would not be unearthed except for the disclosures made by whistleblowers.