Lawyers ‘coaching’ clients to exploit whistleblower laws – Isme

Under whistleblower protection laws, up to seven years’ pay can be awarded

A business lobby group says it believes some employment lawyers may be “coaching” their clients to exploit whistleblower protection laws, under which up to seven years’ pay can be sought for wrongful dismissal. That compares to a maximum of two years’ pay under normal unfair dismissal rules.

The Irish Small and Medium Enterprises Association (Isme) says that one of its members “uncovered what amounted to the coaching” of an employee by his solicitor.

The lawyer is understood to have encouraged the client, who was in dispute with his employer and feared he would lose his job, to make a bullying complaint to the employer before he was let go.

This, the lawyer is alleged to have suggested, could later be characterised as a protected disclosure of wrongdoing under whistleblower rules introduced in 2014. The rules impose heavy penalties on employers who victimise an employee for making a disclosure.

The lawyer is understood to have suggested to the client that if the complaint could be shown to have been made before any dismissal, the client could potentially then seek a higher award under the whistleblower rules.

Neil McDonnell, chief executive of Isme, said: “It would be against both the spirit and letter of the Protected Disclosures Act if it was used to misrepresent or falsify normal employment relations procedures within businesses.”

‘Vexatious’ use of rules

He called on Oonagh Buckley, director of the WRC, to ensure that her staff remained alert for "vexatious" use of protected disclosure rules in employment cases referred to the commission.

Mr McDonnell said lawyers coaching their clients to exploit the more generious awards under whistleblower rules was a “potential abuse” of the system: “We are concerned that it is being used as a lever to substantially increase pressure on employers.”

The WRC said it was unaware of any increase in the number of cases referred to it under protected disclosure rules. Just six of the complaints to it in 2016 invoked the 2014 Act.

Most State agencies must report how many protected disclosures they receive each year. For example, the Prison Service received seven such disclosures last year, of which five were immediately dismissed. The Central Bank, meanwhile, received one disclosure in the year to July 2015, 44 the following year, and 79 in the year up to the middle of 2017.

In the private sector, Robert Pitt, chief executive of Independent News & Media, made a protected disclosure to the State's corporate watchdog as part of his dispute with the company.

Mark Paul

Mark Paul

Mark Paul is Business Affairs Correspondent of The Irish Times. He also writes the Caveat column

Peter Hamilton

Peter Hamilton

Peter Hamilton is a contributor to The Irish Times specialising in business