Whistleblowing legislation now in place.

Ealier this month the Protected Disclosures Bill 2013 (the Bill) was passed by both Houses of the Oireachtas and signed by the President on 8 July. The new legislation provides comprehensive whistleblower protection across all sectors of the economy. To date there has been some limited protection available in certain sectors of the economy. The legislation does not not repeal existing legislative protection, the intention is for the sectoral and pan sectoral protections to co exist.

Protection is provided to a worker who makes a protected disclosure of relevant information to their employer, prescribed person (as prescribed by the Minister), Government Minister, legal advisor, trade union official or disclosure in other cases as set out the Bill. There is no mandatory requirement to disclose the relevant information to the employer at first instance; however the stepped approach to disclosure as set out in the legislation is designed to encourage workers to raise the issue internally.

The protection available to workers protects against a resulting dismissal and any penalisation a worker may experience due to making a protected disclosure. The Bill introduces a number of amendments to the Unfair Dismissal Acts 1977 to 2007; there is no service requirement to avail of the protection in the Bill, and the redress available for dismissal by reason of making a protected disclosure is increased from 104 weeks to 260 weeks.

Unlike the whistle blowing legislation in the United Kingdom, the motivation for making the disclosure is irrelevant. The good faith requirement was included in the original draft heads, but was subsequently removed as the experience in the UK demonstrated that the good faith test led to scope for legal argument regarding the motive of the whistleblower and this in turn discouraged workers from coming forward. In order to balance this change the amount of compensation in a case where the wrongdoing concerned is not the main motivation for making the disclosure can be reduced by up to 25%.

The legislation places a statutory duty on public sector employers to put in place policies and procedures to deal with whistleblowing. However it is advisable for all employers to have a policy and procedures covering protected disclosures in place, including a clear reporting structure.

Click here to access a copy of the Act.

Wednesday, 16 July 2014