Peter Fitzpatrick (Louth, Fine Gael) | Oireachtas source

This Bill introduces a general protection in law for whistleblowers. It aims to protect workers from reprisals where they report suspected wrongdoing in their organisations. The legislation will apply to both the public and private sectors. Protection is contingent on certain tests, such as reasonable belief. A number of channels are being provided to whistleblowers, depending on the individual circumstances of the worker, to disclose concerns. The Bill's protections are designed to encourage potential whistleblowers to come forward and to prompt higher standards. They will apply to those who make a disclosure of wrongdoing in the workplace and are penalised by their employers as a result. The definition of "worker" will include contractors and former workers, and protection will apply from the first day of employment.

Current legislation in this area is partial and inconsistent, offering varying levels of protection according to employer and industrial sector. This approach leads to uncertainty as to who can make a protected disclosure. The lack of general protection is believed to have stopped some potential whistleblowers from coming forward. The Bill provides a broad overview of the steps a whistleblower must take to receive protection. The disclosure must be made by a worker who reasonably believes the disclosure shows one or more relevant wrongdoings. The information must come to the attention of the worker in connection with his or her employment and the worker must decide to whom he or she will make the disclosure. Generally, a disclosure shall be made to an employer, but certain workers may take other avenues depending on the circumstances of their case. This includes making a disclosure to a Member of Dáil Éireann. Deliberately false reporting will not meet the reasonable belief test and is not protected under the Bill. Special arrangements have been put in place for disclosures relating to law enforcement matters and disclosures that could inadvertently affect Ireland's security, defence or international relations.

Protected disclosures will be included under the Unfair Dismissal Act 1977, with compensation of up to five years of pay. Protected disclosures have immunity from civil liability and are not criminal offences. The Bill also provides for the protection of a whistleblower's identity and a right of action in tort law for detriment caused by a third party. Employers are prohibited from penalising or threatening a worker for making a protected disclosure. Workers in State bodies will also be in a position to claim protection if they report their concerns to the sponsoring Department.

The definition of "worker" covers as many persons interacting with the workplace as possible, including members of An Garda Síochána and the Defence Forces. No form of information is excluded from the Bill.

In order to avail of the protection, a worker must have a reasonable belief that the information to be disclosed shows or tends to show one or more of the following: a criminal offence has been, is being or is likely to be committed; a person has failed, is failing or is likely to fail to comply with any legal obligations to which he or she is subject; a miscarriage of justice has occurred, is occurring or is likely to occur; the health and safety of any individual has been, is being or is likely to be in endangered; the environment has been, is being or is likely to be damaged; an unlawful, corrupt or irregular use of funds or resources of a public sector body has occurred, is occurring or is likely to occur; an unlawful, corrupt or irregular use of public moneys has occurred, is occurring or is likely to occur; an act, omission or course of conduct by a public official is oppressive, improperly discriminatory, grossly negligent or constitutes gross mismanagement; and information tending to show that any matter falling within any one of the proceeding sub-paragraphs, whether alone or in combination, has been, is being or is likely to be deliberately concealed.

The Labour Relations Commission is in the process of preparing a code of practice for workers and employers relating to the manner in which protected disclosure are to be handled. Both ICTU and IBEC have engaged with this process, which will continue apace with the objective to have a code in time for the enactment of this Bill. With goodwill on both sides, it is anticipated that the code will serve to ensure that the majority of disclosures are dealt with successfully at local level and that any necessity on the part of a worker to access the protection in the legislation will represent the exception rather than the norm.

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