Introduction

The question of “whistleblower” protection – enabling employees and others to report information on wrongdoing to employers, public authorities, members of the legislature or the media without fear of reprisal – is not new in the Irish context. Such protection is seen as an important element in a number of regulatory and criminal law measures. Provisions designed to prevent employers penalising employees who have reported wrongdoing are to be found, for example in legislation on child abuse, competition, health and safety, bribery and corruption, and work permits. 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.

All this current and proposed legislation reflects the importance of enabling people to report wrongdoing, especially where this is the only way of bringing it out into the open. Indeed, it is increasingly seen as an essential tool in the regulatory and criminal law armoury.

The General Scheme

The 2011 Programme for Government envisaged a Whistleblowers Act to protect public servants who exposed maladministration by Ministers or others. This was widened in June 2011, when the Minister for Public Expenditure and Reform, Brendan Howlin, signalled that he would propose overarching legislation providing for good faith reporting of wrongdoing and protected disclosures for all public and private sectors.

On 28 February 2012, the Minister published the General Scheme of the Protected Disclosures in the Public Interest Bill 2012. The General Scheme is the first public step in the legislative process. It is intended to turn the general wording of the Scheme into a more carefully-drafted Bill in the second quarter of 2012 (a challenging enough exercise in itself) and then it will go through the Oireachtas. However, even at this early stage, it is important to know what is being proposed and for employers and workers (and their representatives) to start preparing: it is currently intended that the Bill will have immediate effect once enacted.

What’s New?

What is new is the overarching nature of the proposed regime and the new focus on the public interest in enabling disclosures of information to be made without fear of reprisal. The idea of employer responsibility and engagement is at the heart of the proposals. Some employers will already be attuned to the need to protect whistleblowers. Many are not and will need to heed the statement made in the press release accompanying the General Scheme:

“… the proposed legislation highlights the responsibility of employers, to put effective internal mechanisms in place to investigate whistleblowing complaints and to develop an organisational culture that supports whistleblowing as a key element of corporate risk management overall, in order to protect potential wrongdoing and take appropriate corrective action at the earliest possible stage.”
 
Objects of the Proposed Legislation

The Bill will include a statement of purposes to give context to the detailed provisions. Four objects are stated:

• To promote in the public interest the disclosure of information in appropriate circumstances relating to unlawful conduct or other misconduct by an employer
• To provide procedures under which a worker can in a responsible manner disclose such information
• To protect public and private sector workers from being subject to an occupational detriment on account of such disclosure
• To make available remedies providing redress for workers who suffer detriment as a consequence of having made a protected disclosure

Elements of the Proposed Regime

There are a number of 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, 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” clearly goes beyond actual or likely criminal law breaches (where there should be no question of not protecting whistleblowers) to other areas where reporting “bad behaviour” is protected even where the behaviour may not be not unlawful. A broader “public interest” dimension to whistleblowing is therefore introduced.

The Scheme covers qualifying disclosures by workers regarding conduct by employers. A broad definition is to be given to “workers” to cover contractors, trainees, agency staff and home workers.

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 – generally 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 risk-management 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 make the disclosure in good faith.
• 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.
• 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.
• 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 allegation, 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.

The stepped approach is a complex one and is likely to become more so as the process evolves. 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 (as opposed to what is in the employee’s own mind) is to be applied. The employee will also be expected to make potentially difficult judgements about the adequacy and genuineness of internal employer procedures. Even though there will be a presumption in favour of the worker in proceedings before the Rights Commissioner or in Labour Court proceedings, the employer might be expected to try to rebut this. 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 State 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 other protections. The worker is given immunity from civil liability, including damages claims, unless he or she has acted in a false or misleading way. The worker may take civil proceedings against third parties who engage in actions to the detriment of the worker. Finally, the worker will enjoy 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 the disclosure. He or she should benefit from the full range of rights available to them under relevant Irish employment and other laws. Remedies will include reinstatement or reengagement in the case of dismissal and the payment of compensation. The primary protection against penalisation by the employer is to be secured using 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 way.

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”.

In an ideal world, recourse to proceedings against employers for taking reprisals against employees should become increasingly unnecessary if the underlying culture-changing aims of the proposed legislation are achieved. However, it should be said that the Scheme does not provide a very clear basis for securing this result: in contrast, say, to the UK bribery legislation, where the existence of adequate procedures provides a defence to a company’s failure to prevent bribery, there is no direct incentive for employers to adopt appropriate whistleblower protection procedures. In time, employers may see the sense of doing so …

What this Means

The proposed legislation is designed to encourage a fundamental change in the mindset of employers and employees.

For many (especially smaller) employers, it may represent yet another length of red tape – to be added to the other areas where compliance is required but the resources (if not the will) to comply are lacking. However, if properly integrated into an employer’s risk management procedures, these efforts could pay off in a short to medium timeframe.

For employees, the very complexity of the legislation will cause concerns and there may be reluctance to report where it is not absolutely clear that protection will be available. This is not a “carte blanche for “troublemakers” but a thoughtfully designed mechanism for reporting by bona fide whistleblowers. There are, nevertheless, important questions relating to legal certainty – such as the scope of reasonableness requirements – which will have to be addressed in the forthcoming debate.

It should be stressed that the new regime is about protecting the public interest – with the protection of employees as a key mechanism in securing this aim. In the final analysis, the success or otherwise of the new regime will depend on whether employee disclosures (or the threat that they might be made) will result in greater levels of compliance, and successful prosecutions and other sanctions where wrongdoing has occurred.

Contributed by Cormac Little and Claire Waterson.