Protection for whistleblowers

While Transparency International’s 2022 report ranks Ireland among the 10 least corrupt countries in the world, recent as well as historic scandals suggest there remains room for improvement. Indeed, a 2022 EU Eurobarometer poll found 59% of Irish people believe corruption to be a widespread problem in their own country, albeit somewhat below the EU average of 68%.

This perception may reflect the poor protection – until now – Ireland has given to whistleblowing. ‘Whistleblowing is one of the most effective ways of exposing corruption, human rights abuses and other wrongdoing,’ says Stephanie Casey of Transparency International Ireland.

Giving evidence to the Oireachtas in 2017, Jonathan Sugarman made no bones about his experience of making a protected disclosure while he was working as risk manager at UniCredit Bank Ireland a decade earlier. ‘Official Ireland has absolutely and completely destroyed the lives of every single whistleblower who has come forward, from whatever walk of life they’ve come from,’ he said.

Poor record

While Ireland was one of the first EU states to enact legislation through the 2014 Protected Disclosures Act, its protection against employer reprisals has proven weak. A study by Transparency International Ireland of callers to its anti-corruption helpline in 2017–20 found that just 8% of whistleblowing-related claims brought before the Workplace Relations Commission were successful.

Julie Galbraith, a partner in employment law at Eversheds Sutherland, says the past may offer some explanation. ‘Historically, there is no doubt we have been very poor at protecting whistleblowers in Ireland. It may be something that goes back to colonial times and the negative connotations around reporting or informing on someone to the authorities, no matter how valid the reason.’

More protection

The Protected Disclosures (Amendment) Act 2022 came into force on 1 January. It strengthens protection against retaliation, broadens the scope of those who can speak up, and sets out clear requirements for employers in dealing with protected disclosures.

Louise O’Byrne, a partner at law firm Arthur Cox, says that, in placing significant new responsibilities on employers, ‘the 2022 Act has significantly increased protection for whistleblowers. Instead of a reporting person having to prove they were penalised as a result of making a protected disclosure, their employer will have to prove that whatever act or omission is complained of was based on “duly justified grounds”. This should instil confidence in anyone making a protected disclosure.’

That confidence may be further bolstered by the new offences created by the legislation, which include breaching the confidentiality of a reporting person, hindering a person from making a protected disclosure, or penalising or threatening to penalise a reporting person.

‘The law is very clear that people have to be protected, and employees are more aware of their rights than ever,’ Galbraith says. ‘Companies will not be rushing into disciplining someone or making them redundant in a situation of potential whistleblowing.’

Also significant is the range of individuals who can claim protection under the act has now expanded to include former employees, board members, contractors and even job applicants. O’Byrne says: ‘A job applicant would not necessarily need a deep knowledge of a company’s operations to become aware that the company is perhaps breaching equality or data protection legislation during the recruitment process.’

Formalised

There is a requirement for any organisation with more than 50 employees to establish formal channels and procedures around protected disclosures (although those with between 50 and 249 employees have until December 2023 to comply). However, organisations involved in ‘financial services, products and markets, and prevention of money laundering and terrorist financing’ must meet the act’s full procedural requirements from 1 January, regardless of workforce size (including those with fewer than 50 employees).

Recognising that smaller businesses may find this process ‘quite burdensome’, O’Byrne points out that the central requirements are that whistleblowing systems ‘must maintain confidentiality, and provide diligent follow-up and feedback to the reporting person’. Businesses that lack the resources to operate reporting channels internally can authorise an external third party to provide them.

Embrace the act

The legislation offers protection to reporting persons only for genuine protected disclosures (see panel). Under the act, it is an offence to report information the reporting person knows to be false.

For those who fear a protected disclosure made to their company is a reputational risk in the making, Galbraith argues that whistleblowing can strengthen the organisation. She says: ‘It’s important to move beyond any knee-jerk reaction you might have and reflect on the information you have been given as an employer. Why wouldn’t a company want the insights of its employees on how it can do better in a particular area?

‘In most cases, the response will come down to the company’s internal policy on the disclosure made. Embrace this process. Investigate and be seen to do so. Make sure the person who has made the disclosure can see the work being done and the reasoning behind the decision made.’

Should an organisation find it has no policy in place, O’Byrne says it remains essential to protect the confidentiality of the reporting person and to seek appropriate advice – from HR or externally if necessary – promptly.

Whistleblowing has been instrumental in uncovering corruption and wrongdoing in many sectors of Irish life, but at a high cost for many individuals. The new act aims to genuinely protect those who make disclosures.