Protected Disclosures Bill, 2013

(14 Mar 2014)

The Government published the long awaited protected disclosures bill 2013 on the 3rd July 2013 last. 

Recent media coverage involving the Gardai, the HSE and other charitable organisations have very much focused media attention on the role of whistleblowers in highlighting various shortcomings in Corporate Governance and Regulation.

The Whistleblowers Bill aims to promote the disclosure of information that relates to a wrongdoing, in the work place by offering protection for all workers against any penalties in circumstances where they make what is known as a protected disclosure. 

Given the current economic circumstances in which the country now finds itself, the bill is part of an anticorruption mechanism to promote a culture of public accountability and transparency in relation to public use of funds and assets. 

The Protected Disclosures Bill 2013 aims to provide a single, comprehensive piece of legislation that will cover both public and private sectors in Ireland.  

An analysis of the Bill which is still at second stage in Dáil Eireann is as set out below:- 

Who is protected under the Bill? 

All workers who are widely defined and extends to employees, contractors, trainees, agency staff will have protection under the Bill. 

What is a protected disclosure? 

There is a very wide definition under the current terms of the Bill.  A protected disclosure is disclosure of relevant information which, when made by a worker, which came to their attention in connection with their employment, they reasonably believe to have shown that a wrong doing has occurred. 

What are relevant wrong doings? 

Examples are and include the following:-

 

  • The commission of offence.
  • A miscarriage of justice.
  • Non compliance with a legal obligation.
  • Health and Safety threats.
  • Misuse of public funds.
  • An endangerment of health and safety.
  • A concealment or destruction of information relating to any of the above. 

The Bill provides for a retrospective effect, this therefore will mean that a disclosure made before the date of the ultimate enactment of the Bill may be a protective disclosure. 

Method of Disclosure 

The Bill provides for a number of various methods for those who wish to make a protected disclosure including to an employer or other responsible person. 

This tiered approach is to encourage a worker to report to their immediate employer or other responsible person any potential protected disclosure. 

What protection will be provided for workers? 

The Bill provides to the Whistleblower six specific  protections at present:-

 

1.     Protection from dismissal for having made a protected disclosure.

 

2.   Protection from penalisation by the employer, civil immunity from actions for damages.

 

3.    Civil immunity from actions for damages and a qualified privilege under defamation law.

 

4.     A Right of Action where a Whistleblower or member of his/her family experiences intimidation, harassment or any form of discrimination at the hands of a third party.

 

5.     Protection of his/her identity.

 

6.     Immunity from criminal liability for making a protected disclosure. 

A deliberate or false reporting of a protected disclosure will not however, meet the reasonable belief test and therefore workers in those circumstances will not be afforded the protections as set out above.  

What steps should employers now take? 

All public sector organisations must establish and publish internal procedures for protected disclosures with potentially penal sanctions for employers who fail to protect Whistleblowers. There exists a need now for all employers both public and private to enact appropriate internal mechanisms in their organisation.  In anticipation of the enactment of the Bill, in due course, employers should now consider:-

 

  • Putting in place internal structures to deal with protected disclosures.
  • Drafting policies to deal with protected disclosures.
  • Provide training to workers/management to afford the objective of the legislation to be achievable within their organisation. 

Any clause in an employment contract which purports to limit the operation of the Act, when signed into Law and to preclude a worker from making a protected disclosure, will be void. 

© 2008 Arthur McLean Solicitors