Ireland: General Scheme Of The Protected Disclosures In The Public Interest Bill 2012

Overview

The General Scheme of the Protected Disclosures in the Public Interest Bill 2012 (the "Scheme") more commonly known as the Whistleblowers' Bill, was published on 28 February 2012. The aim of the Scheme to protect workers in all sectors of the economy against reprisals in circumstances where they make a disclosure of information relating to wrongdoing which comes to their attention in the workplace. The Scheme provides for a single overarching piece of legislation and has been introduced on foot of the commitment in the Programme for Government to enact legislation to protect whistleblowers who speak out against wrongdoing or cover-ups by an employer.

As the first public step in the legislative process, the Scheme was published to provide interested parties with the opportunity to provide their views on the proposed approach. The Government has engaged with key stakeholders and work is underway on the drafting of the Bill. The Scheme addresses the recommendation in the report of the Mahon Tribunal to introduce a pan-sectoral whistleblower protection act in place of the current sectoral approach. Provision is also made for an amendment to the Garda Síochána Act 2005. This too relates to whistleblower protection and will allow for the necessary adaptations to the internal reporting mechanisms in the Garda Síochána as well as to the redress mechanisms.

The proposed legislation provides for a stepped disclosure regime in which a number of distinct disclosure channels would be available - internal, "regulatory" and external. Through these channels a worker can, subject to different evidential thresholds, make a protected disclosure. The provisions are largely modelled on the UK Public Interest Disclosure Act 1998, with elements of the New Zealand Protected Disclosure Act 2000 also having an influence.

Reforms proposed by the Bill

The protection of both private and public sector workers against reprisals if they make a disclosure of wrongdoing which comes to their attention in the workplace. The provision of a stepped disclosure system (internal, regulatory and external) to allow a worker (subject to different evidential thresholds) make a protected disclosure. The protection of workers making protected disclosures to include where appropriate immunity from civil and criminal liability and making available significant remedies for workers who suffer detriment due to their making a protected disclosure.

The conferral of protected disclosure status on disclosures made under existing sectoral whistleblowing legislation to ensure as uniform a standard of protection as is possible. An onus on employers to establish effective internal mechanisms to investigate complaints and to develop an organisational culture that supports whistleblowing. The legislation aims to make whistleblowing a key element of corporate risk management, in order to identify potential wrongdoing and to take corrective action at the earliest possible stage.

Elements of the Proposed Regime

The following are the core elements of the proposed regime.

Protected disclosures

The Scheme sets out an exhaustive list of the "improprieties" which may be disclosed. These cover the actual or likely commission of a criminal offence, failure to comply with a legal obligation, miscarriage of justice, a threat to health or safety, damage to the environment, misuse of public funds, maladministration/gross mismanagement by a public official, or concealment of any of these matters. The worker must have "a reasonable belief" that the conduct shows or tends to show one of these listed improprieties has occurred or is likely to occur.

The legislator's task is to identify those areas where the public interest requires protection of whistleblowers. The definition of "improprieties" goes beyond actual or likely criminal law breaches to other areas where reporting "bad behaviour" is protected even though the behaviour may not be unlawful. A broader "public interest" dimension to whistleblowing is therefore introduced.

Coverage of employees

The proposed definition of employees will be sufficiently broad as to include people who fall into the employee/ employer type relationship such as contractors, trainees, agency staff, and home workers. Consideration will be given to other persons who may potentially have access to information regarding potential wrongdoing in the workplace and who may suffer detriment on account of having disclosed that information to an appropriate authority.

The "stepped" approach

The Scheme envisages a "stepped" disclosure system. Different conditions and evidential requirements attach to each. The Scheme does not explicitly rank the different channels or - with the exception of wider public disclosure - require a worker to try to use one channel before using another. However, the clear intention is to favour internal disclosure where the employer has an effective riskmanagement culture which accepts the need for and value of whistleblowing.

In summary, the available channels and conditions for protection are as follows:

Disclosure to an employer - The worker must have a reasonable belief that the allegation is true and make the disclosure in good faith.

Disclosure to a relevant body (such as the Central Bank, the Competition Authority, the Revenue Commissioners and the ODCE) - The worker must make the disclosure in good faith and believe it to be substantially true.

Disclosure to a Minister - A disclosure made by a worker in a public body to the sponsoring Minister rather than to the actual employer must be made in good faith.

Wider public disclosure - Disclosure may be made to other persons, such as the media or a member of the Oireachtas but only if the worker: (a) makes the disclosure in good faith; (b) believes it to be substantially true; (c) does not make the disclosure for personal gain; and (d) has good reason for not disclosing it to an employer, Minister or relevant body. It is also necessary to show that the making of the disclosure is in all the circumstances reasonable.

Disclosure of exceptionally serious impropriety - A disclosure may be made to persons covered under the previous channels, even where the conditions set out under these channels are not met, provided that: (a) the worker reasonably believes that the information disclosed, and any allegations made, are substantially true; (b) the disclosure is not made for personal gain; (c) the impropriety is of an exceptionally serious nature; and (d) in all the circumstances it is reasonable to make the disclosure (particular regard being had to the identity of the person to whom the disclosure is being made).

Disclosure to a legal adviser - A worker may make a disclosure in the context of seeking legal advice. There is no requirement to act in good faith.

Anonymous Disclosures - A disclosure made anonymously shall not be a protected disclosure.

The stepped approach is a complex one. The worker will need to be sure that he or she has the necessary protection before embarking on whistleblowing. Although the general good faith requirement will be easy enough to satisfy, it is less easy to know in advance whether other requirements will be satisfied. This is especially the case in relation to wider public disclosure or disclosure of exceptionally serious impropriety, where an objective reasonableness test is to be applied.

The employee will also be expected to make potentially difficult judgements about the adequacy and genuineness of internal employer procedures. This may discourage the "unreasonable" vexatious complainant, but it might also put off the timid or the fearful worker with an important story to tell. Appropriate guidance from the Government and bodies such as Transparency International may help to reduce this problem.

Protection for the worker

Where the worker makes a disclosure in accordance with these various requirements, he or she will enjoy protection against "penalisation" by the employer. This protection will be broadly defined to cover dismissal and disciplinary measures, as well as "more subtle forms of reprisal, retaliation and discrimination".

The worker also enjoys the following protections under Heads 13 - 15:

• Immunity from civil liability, including damages claims, unless he or she has acted in a false or misleading way.
• Tortious liability for victimisation - the worker may take civil proceedings against third parties who engage in actions to the detriment of the worker.
• Immunity from criminal proceedings: this provision will require careful wording to ensure that the whistleblower will not be able to circumvent the Official Secrets Act and other legislation safeguarding sensitive and secret official information.
• The broad range of protections given to the worker should enable the worker to feel secure in making a disclosure. Protection against penalisation by the employer is to be secured primarily through the Rights Commissioner and, on appeal, the Labour Court. This approach, which is widely used in the earlier sectoral legislation, should enable problems to be addressed effectively and in a timely manner.

As the Government's Information Note makes clear, the fact that a worker has to rely on such protections "demonstrates, on face value, a failure in the systems, procedures and mechanisms in place to ensure that whistleblowing complaints made in accordance with the legislative provisions are properly addressed by the organisation to whom they relate".

Other provisions provided for in the Scheme

• Confidentiality - every person to whom a protected disclosure is made must use best endeavours not to disclose the information that might identify the source. Such confidentiality provisions are a standard part of whistleblower legislation domestically and internationally.
• No limit to existing immunities - the Scheme does not limit or transcend any existing privileges, immunities or defences, statutory or otherwise.
• Legal professional privilege - if a legal advisor cannot be compelled in court to give evidence about a matter, neither he nor she may make a protected disclosure about it.
• No contracting out - the Scheme expressly states that employers and employees will not be able to contract out of the provisions.

Practical Implications for Businesses

This Scheme has been welcomed by whistleblowing groups including Transparency International Ireland and Risk Management International, the latter stating it to be "timely and badly needed". However IBEC have warned the Government of the need to consider the administrative and litigious burdens that the Scheme will place on employers. The Scheme encourages employers to put whistleblowing procedures in place and while this may be seen as litigious by some, it is a positive step in creating a more accountable society. The stepped disclosure regime should also assist employers as it will ensure that misbehaviour is disclosed in a manageable way and will only be disclosed to the press if other routes are not viable.

Existing whistleblowing legislation

There are currently 16 Acts in place which provide for whistleblower protection. Although the concept of whistleblowing has been a part of our legislation for a number of years, protection for whistleblowers in Irish Law has largely been developed on an ad-hoc and sectoral basis. Whistleblower legislation is contained in, amongst others:

Criminal Justice Act 2011

The Criminal Justice Act 2011 creates an offence where any person withholds information in relation to specified offences (such as financial, company law, money laundering, theft and fraud, and bribery and corruption offences) and employees who disclose such information are protected against penalisation by their employers. Detailed provisions on the protection of persons reporting breaches of financial services legislation are envisaged in the Central Bank (Supervision and Enforcement) Bill 2011.

General Scheme of the Criminal Justice (Corruption) Bill 2012

The Criminal Justice (Corruption) Bill 2012 General Scheme contains a provision for the protection of whistleblowers. This provision is inserted as a placeholder in the event that the Criminal Justice (Corruption) Bill proceeds to enactment prior to the Protected Disclosures in the Public Interest Bill. It will be amended or removed as appropriate to align with the Protected Disclosures Bill.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.