Protecting the workplace whistleblower
ADDRESSING an audience in Dublin in 2014, Edward Snowden’s lawyer Bill Wisner said he wished for the same type of whistleblowing legislation in the US as we have in this country.
It is hardly surprising therefore that the OECD pronounced in the same year that Ireland’s Protected Disclosures Act 2014 provides the strongest protections in Europe for whistleblowers in the workplace.
The Republic was long overdue proper legislation in this area, but the events surrounding the treatment of Sgt Maurice McCabe and other whistleblowers was the impetus that drove Brendan Howlin to introduce the Protected Disclosures Act in 2014.
The Act gives protection for workers who are threatened with or suffer detriment at the hands of, their employers for “whistleblowing” in accordance with the provisions of the legislation.
This brief FAQ gives a broad overview of the fundamental provisions but should not be relied upon as a legal guide as there are extensive and complex provisions within the Act.
As with all employment legislation, SIPTU members can seek individual advice and assistance through the Workers’ Rights Centre (1890-747881).
How is a worker defined for the purposes of the Act?
The definition is the widest so far in employment legislation and there are four main groups that come under the legislation:
- Agency Workers
- People gaining work experience.
Importantly, the 12-month service requirement under the Unfair Dismissals Acts will not apply and therefore protection will be from day one of employment.
What type of matters would fall under protected disclosures?
- The commission of a criminal offence
- Failure to comply with a legal obligation
- Miscarriages of justice
- Threat to health and safety
- Damage to the environment
- Misuse of public funds
- Public mismanagement/maladministration
What is the process for making the disclosure?
In order to enjoy the protections under the Act, the worker must have a reasonable belief in the allegations made and he/she must go through the prescribed channels, which means a worker may communicate his/her disclosure to:
- An employer (an internal disclosure).
- A legal advisor in the course of obtaining legal advice (a legal advisor includes a barrister, solicitor or trade union official for the purposes of this legislation)
- Externally to a regulatory body (these will be set out shortly)
- Externally to a Government Minister (in the case of a worker in a State body)
- Externally to others (e.g. media or a member of the house of the Oireachtas).
Note: Stronger qualifying criteria must be met for external disclosure.
The disclosure must not be for personal gain, there must be a reasonable belief that victimisation will ensue and the worker reasonably believed that the employer would either conceal or destroy the evidence or in the alternative, the matter was raised with the employer and no action was taken.
What protections are there for the worker?
If it is a protected disclosure the employer cannot penalise or threaten to penalise an employee and there is immunity from civil liability i.e. the whistleblower cannot be sued for defamation if the subject matter qualifies as a protected disclosure. The protections in the legislation will not apply to false disclosures deliberately made.
If a contravention of the prohibition on penalisation is alleged then the employee can bring his/her claim to a Rights Commissioner, the Labour Court or the Circuit Court (see below).
What are the specific protections relating to Unfair Dismissals?
Significantly, and for the first time in Irish employment law, an employee can apply to the Circuit Court for a statutory injunction within 21 days of the dismissal, seeking reinstatement/re-engagement, as determined by the court in accordance with the specific provisions laid down in the Act.
Trade unions at the time lobbied strongly for this form of interim relief.
The cap of two years’ salary as compensation under the Unfair Dismissals Acts is increased to a maximum of five years and the protections for the employee are put in place from day one of the employment, i.e. there is no minimum service requirement.
Public hearings at the Disclosures Tribunal in Dublin Castle, which is chaired by Supreme Court Judge Peter Charleton will continue this Monday (8th January)
The Disclosures Tribunal is investigating allegations of a senior Garda smear campaign against Mr Maurice McCabe.