Legislation should offer some comfort to whistleblowers

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.

It includes amendments to the Unfair Dismissals Act so as to nullify the threat of losing a job as a result of whistleblowing and other protections counter suspension, layoff, demotion, loss of opportunity, transfer and any reduction in wages.

There is even some comfort to those who may find themselves indirectly affected. “This provision is very interesting in that it gives protection to persons other than the employee who actually made the disclosure, and one could envisage family members or perhaps even fellow workers suffering detriment because of an act of whistleblowing,” said Mr Mallon.

But the detail is in its application and while still at the stage of inception in the State, similar legislation is already in place in the UK and is a reasonable indicator.

Mr Mallon quotes an opinion from ALM Medical Services Ltd v Bladon in which the purpose of the legislation was set out as having a mandate to both service whistleblowing and yet protect the interests of both employer and employee.

“There are obvious tensions, private and public, between the legitimate interest in the confidentiality of the employer’s affairs and in the exposure of wrong.”

What may find itself the subject of an early legal test is the simple question of what constitutes a protected disclosure under the Act.

Here Mr Mallon looks again to the UK and to Everett Financial Management Ltd v Murrell in which the equity dealer and a number of colleagues became concerned about a specific practice at the company and decided to seek assurances from the directors that there was no illegality.

This, according to the Employment Appeals Tribunal, was not covered as "merely expressing concerns and seeking assurances that there was no breach of a legal obligation did not involve a disclosure of information".

Substantial information

Also of considerable importance is the matter of fact versus allegation; whistleblowers must be found to have imparted substantial information and not just make claims against their employer.

This was seen in Goode v Marks & Spencer Plc. The company had plans to amend its redundancy scheme and the claimant told his employer he felt the proposals were “disgusting”. He then emailed a national newspaper with the information and claimed it would be a prelude to a wave of redundancies.

However, the tribunal found that “neither his comment to his employer or the email constitute ‘disclosure of information’” and dismissed the claim.

In a separate case the tribunal described the difference between disclosure and allegation, and the importance of it. “The protection is for the whistleblower who reasonably believes, to put it colloquially if inaccurately, that something is wrong, not the investigator who seeks either to establish that it is wrong or to show that his concerns are reasonable.”