Whistleblowers

Whistleblower Bill minister Brendan Howlin has promised to make whistleblower legislation the ‘best in the world’.  He urged interested organisations or civil rights groups with a view on how that legislation should be formed to get in touch.

He said his department had ‘looked at best international proactice’, and the Bill will use UK and New Zealand legislation as templates.  Mr Howlin said the Protected Disclosure in the Public Interest Bill 2012 was a “key part” of the Government’s political reform agenda.

The programme for government had promised legislation “to protect whistleblowers who speak out against wrongdoing, or cover-ups, whether in public or the private sector”.  He said there should have been protection for whistleblowers in the past, especially during the ‘collapse in our economy’ and for people ‘who should have been able to shout stop and weren’t able to’. He added: ‘We are looking at any glitches and open to suggestions.’

Although he assured that all whistleblowers will be protected, he did admit that where someone blows a whistle in a small office environment it ‘will be difficult to protect’ them.  He said: ‘They will be protected, they can’t be dismissed and if they feel they can’t work they will be entitled to compensation. There will be a legal responsibility to protect the information and the giver of the information. 

But, he added, ‘that might not be possible in all circumstances’.

Existing legislation is in the form of The Prevention of Corruption (Amendment) Act 2010 which was signed into law in December 2010 and contains specific protection for employees who disclose wrongdoing in the context of their employment (whistleblowers). The 2010 Act also provides new criminal offences for employers, and employees, with very significant penalties, including fines of up to €250,000 and/or 3 years imprisonment. 

Whistleblowing and White Collar Crime 

The debate commenced in earnest in May 2010 when the Director of Public Prosecutions, Mr James Hamilton, suggested that the lack of strong legislation protecting whistleblowers was deterring witnesses from coming forward and cooperating with prosecutions related to white collar crime. In the same month, the Government promised to update and strengthen the laws dealing with white collar crime and it was against this background that the 2010 Act was implemented. 

Prevention of Corruption (Amendment) Act 2010 

The purpose of the 2010 Act is to strengthen the law tackling corruption in public office and to provide specific protection for employees who disclose suspected corruption offences. The 2010 Act provides that employees who make disclosures in good faith will be protected from civil liability and also from penalisation by their employer (or threats of penalisation), unless the employee makes the disclosure knowing, or being reckless as to whether, the disclosure is false, misleading, frivolous, or vexatious. 

"Penalisation" in the 2010 Act includes any act or omission by an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment and specific reference is made to:

• suspension, lay-off or dismissal, 
  
• the threat of suspension, lay-off or dismissal, 
  
• demotion or loss of opportunity for promotion, 
  
• transfer of duties, change of location of place of work, reduction in wages or change in working hours, 
  
• the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), 
  
• unfair treatment, including selection for redundancy, 
  
• coercion, intimidation or harassment, 
  
• discrimination, disadvantage or adverse treatment, 
  
• injury, damage or loss, and 
  
• threats of reprisal. 
  

The 2010 Act provides that an employer who contravenes the Act by penalising (or threatening to penalise) a whistleblower will be guilty of a criminal offence and liable on summary conviction to a maximum fine of €5,000 and/or 12 months imprisonment and, on conviction on indictment, to a maximum fine of €250,000 and/or 3 years imprisonment. A similar penalty may be imposed upon an employee who makes a disclosure knowing the information to be false. 

The 2010 Act also allows an employee who has been penalised to present a complaint to a Rights Commissioner. The Rights Commissioner has the power to declare that the employer take a specified course of action (which may include reinstatement or re-engagement) or require the employer to pay the employee compensation up to a maximum of 2 years' remuneration. 

Whistleblowers Protection Bill and Future Developments 

More wide-ranging Irish protection for whistleblowers was proposed as far back as 1999 in the form of a Whistleblowers Protection Bill, introduced as a private members bill by Labour Justice Spokesman, Mr. Pat Rabbitte TD. The Bill was withdrawn by the Government in 2006, but was re-introduced in an updated format by Mr. Rabbitte last year. 

The Bill provides a comprehensive list of protected disclosures, including, allegations related to: 

• the commission of a criminal offence, 
  
• failure to comply with a legal obligation, 
  
• a miscarriage of justice, 
  
• danger to the health and safety of an individual, or 
  
• damage to the environment. 

The Bill provides employees with protection from civil liability and penalisation if a protected disclosure is made reasonably and in good faith to certain persons or bodies, including public bodies with regulatory, supervisory or investigative functions (for example, the Garda Síochána, the Central Bank, the Financial Services Regulatory Authority and the Comptroller and Auditor General). The Bill does not provide for any criminal sanction for either employers or employees, but it does allow aggrieved employees to make a complaint to the Rights Commissioner.