Whistleblowers have suffered ‘serious damage’ due to actions by parts of State, TD says

The application by parts of the State of the protected disclosures law has caused "serious damage" to some whistleblowers, the chairman of an Oireachtas committee has said.

Fianna Fáil’s John McGuinness made the comments on Thursday during a sitting of the Joint Oireachtas Committee on Finance, Public Expenditure and Reform and Taoiseach, which is conducting pre-legislative hearings on proposed new legislation on protected disclosures.

He said the State needed “robust” new legislation in this regard that went beyond an EU directive in the area, while acknowledging the “utter failure” of the law as it now stands.

The Fianna Fáil TD said that certain arms of the State, when they are the subject of a protected disclosure, make "free use of the taxpayers' money" to defend themselves.

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“That sort of financial muscle taking on an individual and literally blaggarding him from start to finish and causing mental breakdown or illness of some sort, until the individual gives up, how does that get addressed in legislation?” he asked.

Responding to the chair's comments, John Devitt, chief executive of Transparency International Ireland (TII), who was attending the committee meeting, said the EU directive on protected disclosures provided for support for whistleblowers.

However, he added: “The balance is tipped in favour of the employer, be they private or public sector.”

Trade unions had a role in educating workers about the protected disclosure regime, he said.

“In many cases it is not the employer that is responsible for the reprisal; it is the co-worker of the whistleblower.”

Jim O’Callaghan of Fianna Fáil told the meeting the protected disclosures law was probably one of the most significant laws passed by the Oireachtas in the last 20 years, but it was very complicated legislation.

Encouragement

In his opening remarks to the committee, Mr Devitt said workers might gain encouragement from findings that most people “blowing the whistle at work” have said they did not suffer as a result.

A survey on whistleblowing conducted in 2016 found that “only” 21 per cent of respondents had said their disclosure had a negative impact on them, the committee heard.

The benefits of whistleblowing are increasingly recognised, Mr Devitt said. According to the Association of Certified Fraud Examiners, 40 per cent of all cases of fraud are exposed through tip-offs from staff, the committee heard.

However, he said work by his organisation indicated that workers lose 90 per cent of protected disclosures case claims that come before the Workplace Relations Commission.

Mr Devitt said that the difficulties employers face in dealing with protected disclosures should be taken seriously.

Balancing the rights of whistleblowers and respondents can be difficult, and those accused of wrongdoing and their representatives will often mount stiff challenges to assessments or investigations, he added.

Lorraine Heffernan, legal counsel with TII, said a lot of protected disclosures can begin as a grievance, and that care had to be taken when drafting the legislation in this regard.

Leaking

Journalist Mick Clifford, of the Irish Examiner, who wrote a book about Garda whistleblower Sgt Maurice McCabe, told the committee that, through his work, he has had dealings with dozens of whistleblowers.

He said that the former chairman of the Disclosures Tribunal, Mr Justice Peter Charleton, had suggested that changes might be needed to the whistleblower law to ensure disclosures were not leaked to reporters or politicians.

His experience, Mr Clifford said, including in relation to the McCabe case, was that such a move would be “retrograde”.

In one case he had worked on, involving a protected disclosure about the alleged misuse of public funds and alleged sexual harassment in the workplace, nothing was done until the allegations were published in the Examiner.

“An investigator was [then] appointed within days,” Mr Clifford said. “Ultimately, the allegations were found to have been entirely accurate.”