01 September 2014
This long- awaited piece of legislation represents a new standard of international best practice for whistle-blowers in Ireland. Public sector bodies must now put in place whistleblowing policies which meet the requirements of the Act. Where private sector businesses have policies in place, they need to review them to ensure that they are aligned to the requirements of the Act and that there are no gaps leaving them with a potential exposure.
For the first time in Ireland comprehensive whistleblowing legislation will be in place across all sectors. Whilst there is existing legislation protecting whistleblowers in certain sectors, this new legislation will cover all sectors and will provide more protection than any of the previous legislation.
Below we recap on the key features of the Act and highlight what employers need to do to ensure they can meet the challenges posed by the legislation.
The Act protects workers in all sectors. In accordance with international best practice, the safeguards in the Act are extended to a wide range of ‘workers’. The concept of ‘worker’ includes employees (public and private sector), contractors, trainees, agency staff, former employees and job seekers.
‘Protected disclosure’ means disclosure of relevant information, which in the reasonable belief of the worker tends to show one or more relevant wrongdoings and came to the attention of the worker in connection with their employment.
‘Relevant wrongdoings’ are defined in an exhaustive list and include the following:
The motivation for making the disclosure is irrelevant. The UK experience showed that maintaining a requirement to make a disclosure in good faith led to significant obstacles, impeding the effective working of the regime. In its place, there is a provision allowing for the reduction of compensation payable under the Act to be reduced by up to 50% where the investigation of the relevant wrongdoing concerned was not the only or main motivation for the making of the disclosure.
A noteworthy feature of the Act is that it is retrospective in effect, i.e. that a disclosure made before the date of the Act (15 July 2014) may be a protected disclosure.
Accordingly, where an employee has made a protected disclosure earlier this year or even last year, they may be entitled to protection under the legislation. It is not yet clear how far back this protection will go.
The Act provides for a tiered disclosure regime with a number of avenues open to workers. The Act encourages the vast majority of disclosures to be made to the employer in the first instance. However, other options are available where this is inappropriate or impossible.
1. Internal disclosure to an employer or other responsible person
A worker may make a protected disclosure to his employer where he/she reasonably believes that the information shows or tends to show wrongdoing or if the worker reasonably believes that the wrongdoing relates to the conduct of some person other than his/her employer, or to something for which some other person has legal responsibility, then the disclosure can be made to that person.
2. Disclosure to a prescribed person
The Minister for Public Expenditure and Reform may prescribe a wide list of ‘prescribed persons’ (e.g. a regulatory body) whose roles and responsibilities are defined by law and are, in his opinion, appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Where a worker chooses to disclose in this manner he/she must reasonably believe the information disclosed and any allegation contained in it to be substantially true.
A worker employed in a public body may make a protected disclosure to the sponsoring department rather than to their employer.
4. Legal Advisor
A disclosure made in the course of obtaining legal advice from a barrister, solicitor, trade union or an official of an excepted body is protected.
5. Other disclosures
There is also provision for disclosure in other circumstances i.e. disclosure potentially into the public domain (such as the media) where the standard for reporting is significantly higher. In order for this type of disclosure to be protected the worker must:
In addition, one or more of the following conditions must be met:
In determining whether this disclosure is in all the circumstances reasonable, regard shall be had to a number of factors including the identity of the person to whom the disclosure is made, the seriousness of the relevant wrongdoing, whether the wrongdoing is continuing or likely to occur in the future and whether disclosure is made in breach of a duty of confidentiality.
The Act provides whistleblowers with the following specific protections:
The Act includes measures to protect the identity of whistle-blowers to ensure that any disclosures made are treated confidentially. The default position is therefore not to disclose the identity. However, there are certain exceptions to this set out in the Act.
In light of the Act, employers need to ensure that they are ‘whistleblowing ready’. Public sector employers need to put policies in place to comply with the Act’s requirements. Private sector employers need to review existing policies to ensure that they are aligned with the requirements of the legislation.
As a starting point, a whistleblowing policy should address some of the following points: