The Protected Disclosures Bill, 2013 has been published.
According to the Department of Public Expenditure and Reform, the legislation is intended to ‘provide a robust statutory framework within which workers can now raise concerns regarding potential wrongdoing that has come to their attention in the workplace.’
And they can now do this ‘in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so’.
A press release on the publication also adds: ‘The publication of the Bill meets the commitment contained in the Programme for Government to introduce whistleblower protection legislation.
‘It also addresses the recommendation contained in the Final Report of the Mahon Tribunal advocating the introduction of pan-sectoral whistleblower protection legislation.
‘The finalisation of the Bill has benefited from the report of the pre-legislative scrutiny report prepared by the Oireachtas, Finance, Public Expenditure and Reform Committee as well as the expert advice and input of Transparency International Ireland and consultations carried out with ICTU and IBEC.
‘The legislation also closely reflects international best practice recommendations on whistleblower protection made by, the G20/OECD, the UN and the Council of Europe and draws on recent developments in legislative models adopted or being put in place in other jurisdictions.’
Commenting on the publication, Minister Brendan Howlin said: ‘The publication of this legislation represents a major step in the delivery of the Government’s programme of political reform.
‘It provides for the first time a comprehensive whistleblower protection across all sectors of the economy addressing what has been identified – both nationally and internationally – as a significant gap in Ireland’s legal framework for combating corruption.
‘The publication of the Protected Disclosure Bill and its planned enactment in the autumn should instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest.’
The press release on the publication notice includes a summary of key features of the Bill, and they are:
The legislation provides a comprehensive suite of employment and other protections to whistleblowers that are penalised by their employer or suffer a detriment from a third party on account of raising concerns regarding possible wrongdoing in their workplace.
Compensation of up to a maximum of five years remuneration can be awarded in the case of an unfair dismissal for having made a protected disclosure.
Limitations relating to the length of service that usually apply in the case of Unfair Dismissals are set aside in the case of protected disclosures.
Where a whistleblower or, for example, a member of his family experiences coercion, intimidation harassment, discrimination at the hands of a third-party the legislation provides for a right of action in tort against that person.
A wide definition of wrongdoings is included in the Bill and the safeguards provided in the legislation are extended in line with international best practice recommendations to a wide definition of ‘workers’ which includes in addition to employees, contractors, agency staff and trainees.
Whistleblowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law.
Making a protected disclosure or reasonably believing a disclosure is protected is a defence to any offence prohibiting or restricting the disclosure of information.
The legislation pays particular attention to seeking as much as possible to protect the identity of a whistleblower – the disclosure rather than the whistleblower should be the focus of attention.
The Bill provides in any proceedings that a disclosure is assumed to be a protected disclosure unless the contrary can be proved.
The legislation provides a number of distinct disclosure channels for potential whistleblowers.
The framework which it is planned to put in place seeks to ensure that the worker is encouraged to raise any concern with his or her employer in the first instance by establishing the simple requirement that the whistleblower reasonably believes that the information being disclosed shows or tends to show wrongdoing.
Protection for a disclosure to a public body with responsibility for examining the subject matter of a disclosure or for a disclosure potentially into the public domain is subject to progressively higher hurdles.
The protections remain available if the information disclosed on examination does not reveal wrongdoing. Deliberate false reporting will not meet the reasonable belief test and is not protected.
Special arrangements are put in place for disclosures relating to law enforcement matters and to disclosures that could adversely affect Ireland’s security, defence or international relations.
The Protected Disclosures Bill and Explanatory Memorandum can be found at http://www.oireachtas.ie/viewdoc.asp?DocID=23966&&CatID=59
The Regulatory Impact Analysis for the Bill can be found at http://per.gov.ie/wp-content/uploads/Protected-Disclosures-Bill-2013-Regulatory-Impact-Assessment.pdf