Greater protection for whistleblowers is on the horizon

There have been calls for a change in relation to the protection of whistleblowers in Ireland for a number of years.  Now with a new Government in place the strengthening of the law in relation to the protection of whistleblowers is very much on the horizon.

The Programme for Government 2011 announced on 6 March 2011 by Fine Gael and Labour specifically provides for the introduction of whistleblowers legislation.  In this article I shall deal with some of the protections currently in place for whistleblowers and what we might expect from the new Government.

Calls for Change

In May 2010 the Director of Public Prosecutions, James Hamilton, called for legislation to protect whistleblowers in cases of alleged white-collar crime. The Labour spokesman for Justice, Pat Rabbitte, introduced a Whistleblower Protection Bill in 1999, which was subsequently removed from the Dáil agenda by the previous Government. Pat Rabbitte put whistleblowers protection on the agenda again last year in the form of the Whistleblowers Protection Bill 2010.

What are the current protections for Whistleblowers?

The previous Irish Government introduced whistleblower protections under specific legislation relating to different sectors and industries such as; the Prevention of Corruption Acts 1889 to 2010, the Consumer Protection Act 2007, The Safety, Health and Welfare at Work Act 2005, The Competition Act 2002, The Employment Permits Act 2006, The Communication Regulation (Amendment) Act 2007.

The Whistleblowers Protection Bill re – introduced by Pat Rabbitte last year moves away from the sectoral approach adopted by the previous Government and proposes an all-encompassing legislative basis for the protection of whistleblowers.

What can we expect from the new Government?

In light of the new Government’s political agenda it is likely that we shall see Pat Rabbitte’s Whistleblowers Protection Bill 2010 or a revised form of it being enacted.

What is the purpose of the Whistleblowers Protection Bill 2010 (“the Whistleblowers Bill”)?

The purpose of the Whistleblowers Bill is to provide protection from civil liability to employees who make certain disclosures in relation to the conduct of business and affairs of their employers. The Bill prohibits the penalisation of employees by their employers in such circumstances.

What disclosures are protected under the Whistleblowers Bill?

The Whistleblowers Bill proposes that an employee shall be protected in respect of a disclosure if it is made reasonably and in good faith in accordance with the provisions of the Bill and the information disclosed amounts or relates to, or supports, an allegation —

• that a criminal offence has been or is being or is likely to be committed;
• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject;
• that a miscarriage of justice has occurred, is occurring or is likely to occur;
• that the health and safety of an individual has been or is being or is likely to be endangered;
• that the environment has been, is being or is likely to be damaged, or
• that information tending to show that any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

What redress do whistleblowers have against their employers for penalisation?

The Whistleblowers Bill proposes that employees who have been penalised may present a complaint to the Rights Commissioner. The Rights Commissioner can require that the employer take specified steps or require the employer to pay the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

The whistleblower provisions in other legislation generally caps the amount of compensation that can be awarded to a maximum of two years compensation. The removal of that cap in the Whistleblowers Bill is notable as the loss suffered by whistleblowers could substantially exceed 2 years remuneration.

Conclusion

Many Irish people feel that they are now paying a heavy price as a result of the alleged improper practices in the banking sector in recent years. The Whistleblowers Bill encourages reporting of impropriety by employees and such reporting would be to the benefit of us all.  However the proposed legislation, if enacted, will have significant implications for employers. They could find themselves in a situation where aggrieved employees deploy the threat of a report as an additional form of pressure and the qualification in the legislation that the disclosure must made in good faith may be of little assistance.

For further information on this article or any employment law queries please contact Laura Graham, Senior Associate  lgraham@reddycharlton.ie

Disclaimer

This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Reddy Charlton for any action taken in reliance on the information contained herein. Any and all information is subject to change.