Dr. Lauren Kierans:

I will respond to a couple of the issues the Senator raised, beginning with some advantages of other countries’ legislation. It is worth bearing in mind that the EU whistleblowers directive is about minimum standards. Member states, including Ireland, are entitled to go beyond those. This is a fantastic opportunity for Ireland to fill the holes regarding what is in the directive and not in our legislation currently and to learn from mistakes we have observed over nearly seven years of the legislation being in place. For example, in Australian legislation there is an obligation on employers to carry out a risk assessment of harm to workers who make protected disclosures. Part of their internal process of dealing with the disclosure is to look at the risks to the individual raising the concern and at what measures need to put in place to ensure they are not at risk of retaliation.

The Senator raised the issue of the reversal of the burden of proof. That is within the EU whistleblowers directive. It is not currently in the heads of the Bill. It is expected it will be included. Under our legislation currently, in any legal proceedings it is accepted a disclosure is protected until the contrary is proved. That is great. It is one hurdle the worker does not have to overcome. It is assumed to be a protected disclosure. However, depending on the nature of the claim, the burden is different. If it is for unfair dismissal, the burden is on the employer to show why the employee was dismissed. In penalisation claims, however, the burden of proof is on the employee to show why he or she was penalised. It can be extremely difficult to prove as the employee does not have access to the relevant information the decision-maker had access to.

Mr. Devitt mentioned the research carried out by Transparency International Ireland on success rates under the Protected Disclosures Act. Having looked at that in my research, I found 88% of cases were unsuccessful and 12% were successful. The burden of proof is one issue to be taken into consideration.

Something we could do beyond the directive, which the Senator mentioned, concerns accountability for organisations that do not have protected disclosure procedures. Obligations on the public sector include prescribed persons. They are only obliged to have procedures for their own employees, but I discovered in my research that 68% of prescribed persons had no information about their role publicly available on their website. This will be a new obligation under the whistleblowers directive but we need to see some accountability and sanction for failure to comply. If the public sector does not have procedures in place, there is no redress or remedies for the worker. In legal proceedings, if there is evidence the public body did not have a policy in place, that is not taken into account in assessing the protected disclosure, retaliations and so on. There is no point in having these provisions in place unless there is some recourse for failure to comply.