A whistleblower is a person who raises a concern about wrongdoing in an organisation. The misconduct can be a violation of the law or internal rules/ regulations or in some cases, for example where there is an occurrence of fraud or corruption, a direct threat to public interest.
The term "whistleblower" originates from the actions of British police officers, who would blow their whistles when they noticed the commission of a crime.
Whistleblowers have been responsible for exposing abuse, corruption and unethical wrongdoing and with the recent increase in corporate and political scandals, it may be useful for employers to have whistleblowing mechanisms in place.
The legislation protecting whistleblowers in Ireland is piecemeal. In 1999, the Labour Party unsuccessfully attempted to introduce the Whistleblowers Protection Bill 1999, which was modelled on the UK Public Interest Disclosure Act 1998. The Bill proceeded to the Second Stage but was ultimately dropped due to "legal complexities".
Legislation now exists on a "sectoral" basis and only protects employees in some professions and sectors. The current Irish legislation safeguards whistleblowers reporting (or "disclosing"):
- suspicions of child abuse/neglect (Protection for Persons Reporting Child Abuse Act 1998);
- breaches of the Ethics Acts;
- breaches of Competition Law (Competition Act 2002);
- matters related to workplace health & safety (Safety, Health & Welfare at Work Act 2005);
- Gardaí and Garda civilian employees reporting corruption and malpractice;
- healthcare employees reporting threats to the health and welfare of patients (Health Act 2007);
- offences relating to employment permits;
- the regulation of communications;
- consumer protection;
- offences relating to chemicals;
- breaches of charities law; and
- offences under the NAMA Act 2009.
There are provisions in the above legislation to protect whistleblowers after they have reported an offence. However, to qualify for the protection, the reporting of the offence must generally be reasonable and done in good faith. In particular, there is no protection from dismissal per se, although many (but not all) employees will have some protection under the Unfair Dismissals Acts.
There is great inconsistency in the protections offered to a person making a disclosure and the forum for bringing a claim differs under the various statutes.
There are no whistleblower protections under Company Law or in relation to the provision of financial services.
There have been a number of recent examples of whistleblowing for example, an instance where disclosures were made to the Financial Regulator relating to overcharging and questionable share dealings within a bank. The whistleblower in this case was asked by the Financial Regulator to withdraw his complaint and ultimately, when the scandal became public, his employment in the bank came to and end.
There are no statistics collated on the occurrence of whistleblowing in Ireland, nor is there an anti-corruption hotline available to the public as there is in some other countries.
In order to fill the gaps in the current legislation, it is worth considering whether best practice for Ireland would be to adopt all encompassing whistleblower legislation applicable to public, private and non-profit sectors. A similar approach has been adopted very successfully in the UK, both in terms of protection of the public, and in terms of informing organisations about potential problems which may impinge negatively upon shareholder value.
By contrast to the Irish position, the UK Public Interest Disclosure Act 1998 concerns "protected disclosures" and essentially protects workers against being subjected to penalisation where they have exposed a wrongdoing within an organisation. The Act also prevents the dismissal of such employees. The Act defines what type of content such disclosures must include in order to attract protection and clearly outlines to whom such disclosures must be made. Since the 1998 Act, many employers have introduced whistleblowing policies to encourage internal disclosure and resolution of malpractice in the workplace.
Conclusion
In the absence of comprehensive legislation in Ireland, it may be prudent for employers to put a "Whistleblowing" or "Ethics" policy in place.
Any such policy should be aimed at encouraging employees to raise genuine concerns about possible unethical or unlawful conduct and provide a transparent and confidential process for dealing with those concerns. The person to whom the whistleblower should report should be set out clearly and the policy should also clarify the consequences for employees of making vexatious or malicious allegations, such as disciplinary action.
There is currently a Private Members Bill (The Whistleblowers Protection Bill 2010) on the Dáil order paper, but as is usual with non Government sponsored Bills, it is unlikely to make progress. For the moment therefore, any company looking to assist its employees to make disclosures to it about bad practice, should consider putting its own procedures in place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
