Care needed with whistleblower legislation

Whistleblowing has been the subject of considerable media and political attention in Ireland in recent years.

There have been a number of high-profile cases involving whistleblowers, and it is clear the Government believed it was necessary to put comprehensive whistleblowing legislation in place. The result was the Protected Disclosures Act, 2014. Employers should handle this with care.

With its passing, the Government can hardly be criticised for an insufficient response. If anything, as far as an employer is concerned, particularly a public sector employer, it may go too far.

The legislation’s main purpose is to protect workers. That is obviously a laudable aim. The Act prohibits penalisation of any kind – including dismissal, harassment, failure to promote – where an employee makes what is known as a “protected disclosure”.

Normally, a protected disclosure arises where an employee forms a “reasonable belief” that information that comes to their attention in the workplace “tends to show one or more relevant wrongdoings”. The information must come to their attention in the course of their work; information learned outside of the workplace is not covered.

Reasonable belief

The range of “relevant wrongdoings” could not be wider: it runs from the possibility of a crime to damage to the environment to risks to health and safety.

Public bodies are particularly catered for, and practically all acts or omissions involving misconduct on the part of a public body, including wasting public funds or resources, will be a “relevant wrongdoing” for the purposes of the Act and therefore a protected disclosure.

All an employee has to do to be protected is form a “reasonable belief”. That is clearly not a terribly high standard and an employee does not have to be convinced that wrongdoing has occurred; all that is required is this “reasonable belief”. It may be quite difficult in practice to prove that a belief was unreasonable.

Also, the worker’s motivation is irrelevant and an employee could, for example, act from malice or dislike of their employer. However, as long as they have this “reasonable belief”, they cannot be punished for disclosure.

Another notable feature of the Act is that there is a presumption in favour of a disclosure being protected. The Act stipulates that in any proceedings, it shall be presumed a disclosure is protected until the contrary is proved. This puts a heavy burden on employers: if they are accused of penalising a worker and face court proceedings, they will have to prove that the disclosure was not protected.

On the subject of proceedings, the Act adds two powerful weapons to an employee’s arsenal. The first is the power to seek a Circuit Court injunction restraining dismissal. This is the only form of statutory injunction in existence in employment law. Once a judge forms a belief that the employee has been terminated for making a protected disclosure, that judge must grant an injunction restraining dismissal. This in itself is a novel remedy in Irish employment law.

‘Spectacular protections’

Separately, an employee who is penalised can bring a complaint to an adjudication officer in the

Workplace Relations Commission

and can be awarded damages up to a threshold of five years’ remuneration. This is also a significant departure from the norm in employment law cases; in normal course, an employee’s damages are capped at two years’ salary.

There have not been many decided cases in relation to the legislation so far, as it is only in effect for about 18 months.

However, the cases decided to date clearly indicate that the presumption in favour of a disclosure being a protected one – something that is enshrined by the Act – will be fully upheld by the courts.

It is also clear from the legislation from the case law to date that, among other things, any suggestion of penalisation will be within the scope of the Act. In one of the decided cases so far, the mere suggestion that an employee might be the subject of disciplinary action arising from a disclosure resulted in an injunction being granted against the employer.

It is clear that the intention of the legislation is to allow an employee to make a protected disclosure and then be utterly protected in their dealings with their employer. A leading employment law counsel recently described the legislation as providing “spectacular protection for employees” in the course of a case.

That is no exaggeration. Nobody is going to argue that genuine whistleblowers should be without a remedy. However, there must be a concern that these “spectacular protections” could be the subject of abuse and that disgruntled employee will enjoy a great deal of protection. Their disclosures will be presumed to be true and an employer faces the difficult task of convincing a court – or the WRC – that a belief was “unreasonable”. That may not be easy.

Patrick Walshe is a partner and employment law expert at Philip Lee philiplee.ie