Tuesday, May 2, 2017
The subject of whistleblowing is one that has attracted a great deal of attention in Ireland in recent years. The ongoing saga of Garda whistleblowing continues to occupy acres of newsprint and it is an issue that shows little sign of dying down. The enactment of the Protected Disclosures Act, 2014 was a high watermark in terms of legislative intervention in this area and there is no doubt that the Act is having a significant effect on corporate culture and the employer-employee relationship in Ireland.
The purpose of the Act is very simple – it creates (stringent) mechanisms to protect employees in circumstances where (a) they make what is known as a “protected disclosure” and (b) they are penalised by their employer as a result.
A leading employment law barrister described the provisions of the Act as providing “spectacular protection” for employees and this is no exaggeration. Among other things, an employee who is able to demonstrate to a court that their dismissal was motivated by the making of a protected disclosure can obtain an interlocutory injunction restraining their dismissal until the Workplace Relations Commission has had an opportunity to adjudicate. As well as that, the normal damages threshold – two years – is increased to five in cases of penalisation of whistle-blowers.
Put together, these provisions are exceptionally powerful tools in an employee’s arsenal. There is also the fact that the legislation positively presumes in favour of a disclosure being protected – in cases of doubt, there is a presumption in favour of a protected disclosure.
What does all of this mean for employers?
Firstly and foremostly, it means that employers have to exert great care in circumstances where protected disclosures are brought to their attention by employees. Any “relevant wrongdoing” is caught by the scope of the legislation and the net is cast extremely widely. Everything from actual crimes to damage to the environment to risks to health and safety are covered by the definition of “relevant wrongdoing” in the Act, which means that virtually anything that comes to an employee’s attention in the course of their work is susceptible to reporting as a protected disclosure.
Employers should deal with protected disclosures with scrupulous care – they should investigate them thoroughly and take any necessary steps, including bringing the protected disclosure to the appropriate authority (such as the Gardai). Public bodies are obliged to have written procedures governing the making of protected disclosures. There’s no comparable obligation on private sector bodies but it’s prudent to consider putting one in place. Apart from anything else, a written procedure will eliminate ambiguity and this is ultimately in the interests of employers and employees.
It goes without saying that employers should proceed extremely carefully when dealing with whistleblowers – any hint of penalisation is likely to be sanctioned by the courts. It’s also a fact that complicated and difficult issues may arise for employers where disciplinary (or related) issues affecting whistleblowers come up in the workplace. There were two injunctions granted in 2016, for example, restraining employers from dismissing whistle-blowers.
Even in cases in which an employer is able to demonstrate a prima facie objective reason underpinning the dismissal (such as redundancy), employees have still been able to obtain injunctions. The level of protection is simply that high.
In many ways, an employee contemplating making a disclosure is in a relatively comfortable positon. They certainly enjoy a wide variety of protections and all they have to form is a “reasonable belief” that a relevant wrongdoing has occurred. An employee certainly does not have to have proof of the relevant wrongdoing – a reasonable belief is more than sufficient. This means that employees enjoy a great deal of latitude when it comes to making a protected disclosure and that latitude has been firmly protected by the law in all of the reported cases to date.
The lessons are very clear – penalise whistleblowers at your peril. Employers should take all necessary steps to vindicate protected disclosures. In tandem with this, employers should not even contemplate any kind of punitive measures against employees who make these disclosures – there is now no doubt that the law will intervene speedily and decisively in cases where employees’ rights are infringed.