Saturday, October 11, 2014
This is a major piece of legislation aimed protecting whistleblowers from retribution as a result of their disclosures. The Act was originally published on 3 July 2013 and is highly topical given recent developments in Irish society.
The legislation applies to “Protected Disclosures” which are disclosures (a) tending to show one or more “Relevant Wrongdoings” and (b) coming to the attention of a worker in connection with their employment.
“Relevant Wrongdoings” are given the widest possible definition and apply to a variety of matters including the likelihood of an offence being committed, a miscarriage of justice, endangerment to health and safety or the environment, unlawful use of public funds or acts or omissions by a public body which are oppressive, discriminatory or grossly negligent.
The legislation prohibits discrimination against whistleblowers who reveal any of these matters. The legislation provides for a “tiered” disclosure procedure whereby disclosures are initially made within an organisation. However, the legislation provides for escalation to disclosure outside of the organisation in circumstances where the employer does not take the disclosure seriously, or does nothing about it.
A number of weighty protections are built into the legislation. Of these, perhaps the most significant is the fact that an employee who is unfairly dismissed as a result of making a protected disclosure can be awarded up to five years remuneration. This is more than double the existing threshold in unfair dismissal cases and could prove to a significant deterrent to an employer who contemplates punitive action against a whistleblower.
As well as providing for compensation in cases of unfair dismissal, the legislation allows an employee to make a claim for “penalisation.” This is deliberately drafted widely to cover any actions taken against a whistleblower falling short of dismissal.
In addition, a novel provision in the legislation is the creation of a cause of action in tort which can be taken by any person who causes detriment because of the making of a protected disclosure. The provision could, for example, be relied upon by associates of a whistleblower or co-employees who have suffered as a result of whistleblowing.
However, there is no doubt that the 2014 Act represents a significant departure in the manner in which whistleblowers are treated in this country. The extent of the sanctions envisaged by the legislation underscores the perception on the part of government that whistleblowing is a significant issue that requires legislation.
Particularly notable is the fact that the legislation applies to all employees (unlike the previous sector-by-sector approach). Obviously much attention has been focused on bodies such as the Garda Siochana in recent months, but the new provisions will apply universally. Developments are keenly awaited.