November-11-2013 in Employment Law
The Protected Disclosures Bill 2013 was published by the Minister for Public Expenditure and Reform, Mr Brendan Howlin, T.D. earlier this year and is expected to be enacted before the end of 2013. The Minister has described the Bill as “Ireland’s framework for combating corruption.” It is intended that this legislation will act as Ireland’s first overarching statute enabling protected disclosures, better known as whistleblowing, to be made by workers in all sectors of the economy.
At present, there is no widespread protection for whistleblowers in Ireland. Protected disclosures are provided for in discrete areas under separate Acts, such as the Health Act 2007. However, this sector by sector approach has been criticised for creating varying standards and protections in different areas of the economy. The comprehensive whistleblowing legislation has therefore been welcomed in addressing a significant gap in Ireland’s legal framework.
Over a dozen countries have already adopted comprehensive whistleblowing legislation to create mechanisms and protections for workers in reporting alleged wrongdoing and Ireland is now following suit.
The Bill follows the United Kingdom’s approach of a single piece of legislation applicable to all sectors. It aims to allow workers to make disclosures relating to wrongdoing which has come to their attention in the workplace in a safe and protected manner. There is no public interest requirement for a disclosure to receive protection.
Implications for workers
The Bill in its current form will provide much needed protection for workers who make disclosures of wrongdoing in the workplace. It is important to note that the Bill will apply not only to employees but to all categories of workers including contractors, trainees and agency staff.
The Bill provides protection for whistleblowers penalised by their employer, or who suffer a detriment from a third party, on account of raising concerns regarding wrongdoing in the workplace. Importantly, workers will be able to bring claims under the Unfair Dismissals legislation without having accrued one year’s continuous service in employment which is usually required when seeking to enforce the protection of the legislation. Another key feature of the Bill in this context is that compensation up to a maximum of five years’ remuneration can be awarded if a claim of unfair dismissal on the grounds of having made a protected disclosure is successful.
Section 5 of the Bill defines a protected disclosure as one made by a worker which discloses relevant information which in the reasonable belief of the worker tends to show wrongdoing as set out in the Bill. The definition of wrongdoing is quite broad and covers actual or intended wrongdoing.
The protections remain available even if upon examination the information disclosed does not reveal any wrongdoing. However deliberate false reporting will not meet the reasonable belief test and is not protected.
While anonymity is not guaranteed under the Bill, there is an obligation on the party to whom the disclosure is made to take all reasonable steps to avoid disclosing the identity of the worker making the disclosure. Failure to comply with that obligation is actionable by the worker if they suffer detriment subject to a number of conditions.
Implications for employers
Employers should act prudently in moving to put in place the policies, structures and training needed to implement the requirements of the legislation.
The Bill includes a requirement that all public sector employers must put in place a whistleblowing policy for the workplace. However, it would be wise for private sector employers to take similar practical steps.
The Bill encourages internal reporting in the first instance and so it is important that employers establish the necessary structures for same and ensure that the relevant personnel are correctly trained to deal with any whistleblowing issues which may arise. Policies around confidentiality should also be carefully considered in this context.
Additional key features of the draft Protected Disclosures Bill:
- A worker may not be penalised for making disclosures relating to:
- The commission of an offence
- Non-compliance with a legal obligation
- A miscarriage of justice
- Endangerment of health and safety
- Damage to the environment
- Misuse of public funds
- Mismanagement by a public body
- Concealing or destroying information relating to any of the above
- Whistleblowers will benefit from civil immunity from actions for damages and qualified privilege under defamation law.
- Where a whistleblower or, for example, a member of his or her family experiences coercion, intimidation, harassment or discrimination the legislation provides for a right of action in tort.
- Making a protected disclosure, or reasonably believing a disclosure is protected, is a defence to any offence prohibiting or restricting the disclosure of information.
- The Bill provides in any proceedings, a disclosure is assumed to be a protected disclosure unless the contrary can be proved.
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