On 3 July 2013, the Minister for Public Expenditure and Reform, Brendan Howlin TD, published the Protected Disclosure Bill 2013 (the "Bill") which he referred to as "Ireland's legal framework for combating corruption". This is the first time that a single overarching piece of legislation will apply to protect whistleblowers in all sectors of the economy.
The need for robust whistleblower legislation has never been more apparent than in recent times. Internationally, the Snowden saga has raised questions as to the extent to which workers are protected if they disclose information about actions of their employer where they believe wrongdoing has occurred. Nationally, we have experienced a financial crisis which has exposed significant shortcomings in the transparency and corporate governance of our financial institutions. In this ezine, we set out some key considerations for employers of the provisions of the Bill.
What does the Bill aim to do?
The Bill aims to protect workers from penalisation where they make a disclosure of information that comes to their attention in their workplace and which falls within the definition of a "protected disclosure".
Who will be protected by the Bill?
The Bill does not confine itself to protecting persons in the traditional employer/employee relationship, but instead, it uses the wider term "worker". The protection and remedies provided for in the Bill will therefore also apply to contractors, trainees, agency staff and home workers.
Significantly, the Government has indicated there is no service requirement for workers who wish to seek redress under the Bill. This could potentially lead to claims from employees whose employment contracts have been terminated and who have less than the one years' service required in order to bring a claim for unfair dismissal and who may try to "fit" their claim within the parameters of the protection under the Bill.
What is a "protected disclosure"?
In order for a disclosure of information to be classifed as a protected disclosure, the worker needs to be in a position to demonstrate that he reasonably believed the information shows one of the following:
- That an offence has been, is being or is likely to be committed;
- That a person has failed, is failing or is likely to fail to comply with a legal obligation other than one arising under the worker's contract with the employer;
- That a miscarriage of justice has occurred, is occuring or likely to occur;
- That the health and safety of an individual has been, is being, or is likely to be endangered;
- That the environment has been, is being, or is likely to be damaged;
- That an unlawful or improper use of funds, resources of a public body, or of other public money has occured, is occurring or is likely to occur;
- That an act or omission by or on behalf of a public body is oppressive, discriminatory, grossly negligent, or constitutes gross mismanagement;
- That information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
Interestingly, the motivation for the making of a disclsoure is irrelvelant to whether or not it is a protected disclosure.
Public interest requirement
There is no specific requirement for the protected disclosure to be made in the public interest. This is in contrast to the UK, where the public interest requirement was introduced this year in the Enterprise and Regulatory Reform Act, 2013. The UK took this step to deal with the high volume of disclosures from workers in instances which were not necessarily in the public interest but who sought to invoke the protection of the UK whistleblower legislation. In this jurisdiction, we may see a high volume of claims from employees arising from protected disclosures which do not contain a public interest element.
Method of Disclosure
The legislation provides a number of distinct disclosure channels for potential whistleblowers. It is clear from the Bill that internal reporting is encouraged in the first instance and disclosures to other persons/bodies should only be made if certain conditions and evidential requirements are met. For example, a disclosure to a public body, or a disclosure into the public domain, is subject to a higher evidential threshold than a disclosure to an employer.
Briefly, the options available to a worker include: (1) disclosure to an employer or "responsible person"; (2) disclosure to a prescribed person; (3) disclosure to a Minister; (4) disclosure to a legal advisor, and (5) disclosure in other cases (where options 1-4 do not apply).
What protection will there be for workers?
The legislation is intended to provide a robust statutory framework to facilitate workers in raising concerns regarding potential wrongdoing in their place of work, safe in the knowledge that they can avail of significant protections if they are penalised by their employer or suffer any detriment for doing so. If a worker makes a disclosure in accordance with the various conditions and requirements under the Bill, he will enjoy protection against penalisation by the employer.
Penalisation is defined as:
- Suspension, lay-off or dismissal;
- Demotion or loss of opportunity for promotion;
- Transfer of duties, change of location of place of work, reduction in wages or changing working hours;
- The imposition or the administration of any discipline, reprimand or other penalty (including a financial penalty);
- Unfair treatment;
- Coercion, intimidation or harassment;
- Discrimination, disadvantage or unfair treatment;
- Injury, damage or loss, and
- Threat of reprisal.
There is no guarantee of anonymity for the person who makes the protected disclosure but the person to whom a protected disclosure is made should take all reasonable steps to avoid disclosing to another person any information that might identify the person who made the protected disclosure. Failure to comply with this provision is actionable by the person who made the disclosure if he suffers any detriment. However, this requirement is subject to the following qualifications:
- The person to whom the protected disclosure was made had a reasonable belief that the person who made the protected disclosure would not object to the disclosure of any such information;
- The person to whom the protected disclosure was made reasonably believed that disclosing the information was necessary for –
(i) The effective investigation of the relevant wrong doing concerned,
(ii) The prevention of serious risks to the security of the state, public health, public safety or the environment, or
(iii) The prevention of crime or prosecution of a criminal offence, or
- The disclosure is otherwise necessary in the public interest or is required by law.
Compensation for penalisation of up to a maximum of five years remuneration can be awarded by a Rights Commissioner. If the protected disclosure is found to not have been made in good faith, the amount of the award of compensation can be reduced by up to 50% of what it otherwise would have been, where it is just and equitable to do so. If penalisation constitutes a dismissal of the worker, the worker may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts, 1977-2007, or a common law action for wrongful dismissal. A worker could therefore claim for redress under the Unfair Dismissals Acts 1977-2007 and claim for redress under the Bill arising out of other forms of penalisation such as intimidation or harassment.
Compensation of up to a maximum of five years remuneration could be awarded for each claim taken by the worker. An award under the Unfair Dismissals Acts 1977-2007 would be limited to the worker's financial loss.
Where a whistleblower or a member of his family experiences coercion, intimidation harassment or discrimination at the hands of a third-party, the legislation provides for a right of action in tort against that person. Whistleblowers will benefit from civil immunity from actions for damages and will benefit from a defence of qualified privilege under defamation law.
The Bill provides that in any proceedings, a disclosure is assumed to be a protected disclosure, unless the contrary can be proved. However, deliberate false reporting will not meet the reasonable belief test and will not be protected. In these circumstances, workers could face disciplinary action and action for breach of confidentiality.
Next steps for employers
The Bill closely reflects international best practice recommendations on whistleblower protection. It has also benefited from the pre-legislative scrutiny report prepared by the Oireachtas, Finance, Public Expenditure and Reform Committee as well as input from Transparency International Ireland and consultations with ICTU and IBEC. It will now be the subject of further scrutiny as it passes through the Houses of the Oireachtas.
In circumstances where the Bill may be enacted in the near future, it is now time for employers to consider putting in place internal structures to deal with protected disclosures, drafting policies to deal with protected disclosures (public sector bodies have a statutory requirement to do so) and rolling out training to its workers and management, to ensure the objective of the legislation can be achieved.
By introducing such systems now, the employer will be well positioned to demsontrate that it meets the highest standards of corporate governance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.