Legislation should offer some comfort to whistleblowers

New legal protections around disclosure may have altered historical events had they existed before

The purpose of whistleblower legislation is to encourage employees to “raise genuine and reasonably-held concerns about matters of public interest” free of any threat of sanction

The purpose of whistleblower legislation is to encourage employees to “raise genuine and reasonably-held concerns about matters of public interest” free of any threat of sanction

Mon, Jul 7, 2014, 01:00

With the issue of whistleblowing perhaps more to the fore of Irish debate than ever before, a recent conference heard that legal protections coming in this month may well have altered the course of historical events had they existed before.

The Protected Disclosures Bill 2013 was due to pass its final stage in the Seanad last week and introduce several statutory protections under which employees can bring important information into the public domain insulated from any threat of retribution or sanction.

In a paper delivered to the annual Employment Law Conference in Dublin, Tom Mallon BL took a view of the UK experience as a potential guide on what is to come. As regards history, however, he was clear on the hypothetical benefit and effect.

“If we consider matters in the past there can be no doubt but the availability of whistleblower protection legislation, and more particularly the encouragement to make disclosures, might well have altered some very significant recent historical issues.

“One has only to think about the various issues that were the subject of lengthy and extensive tribunal inquiries, not to mention some of the child abuse scandals and much of the political wrongdoing of which we are now only too aware.”

In both the private and public sectors, protected disclosure legislation will offer a comforting legal position from which to reveal matters of concern. At least that’s the idea.

A whistleblower, by legal definition, is someone who “reports suspicions in respect of some wrongdoing”. Mr Mallon notes that the point of legislation around this is to encourage employees to “raise genuine and reasonably held concerns about matters of public interest” free of any threat of sanction or retaliation.

Ireland currently operates a sort of organically developed “sectoral basis” for law where protections are only available “in certain professional and employment areas, and only in respect of certain types of disclosures”.

Financial crime

For example, in the world of finance there is provision in sections 37 to 42 of the Central Bank Act 2013 for employees to make disclosures on financial crime or cover-up.

Similar provisions also exist independently in Acts covering a myriad of issues like the reporting of child abuse, standards in public office, the Health Act and consumer protection among others.

And yet, despite this apparent commonality, Mr Mallon said: “The present sectoral arrangements are not appropriate. The fact that some disclosures in certain areas are protected and others are not undoubtedly can lead to confusion, and the lack of an overall coherent single piece of legislation has obviously denied the ability of many to make appropriate disclosures.”

He also notes that while these provisions shield against criminal and civil retort they do not necessarily purge the threat of penalisation in the workplace; nor do they all provide anonymity.

In 2012, the Government’s policy shifted and an overarching legislative approach sought, which will do little to change the pre-existing laws but simply incorporate them into the bigger legislative picture.

Here the rules will apply to those who can demonstrate “relevant information” (with the “reasonable belief of the worker” that it shows cause for concern) regarding “relevant wrongdoings” (offences being committed, miscarriages of justice and a threat to the environment, health and safety of individuals or the improper use of funds). Interestingly, the legislation holds that the country in which the activity occurs is immaterial.

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