Whistleblowing Developments

Author:Ms Melanie Crowley and Elizabeth Ryan
Profession:Mason Hayes & Curran
 
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On Monday last, the Minister for Public Expenditure and Reform, Brendan Howlin TD, published the Draft Heads of the Disclosure in the Public Interest Bill 2012 (the "Bill").

The Bill emanates from a commitment in the Programme for Government to enact legislation to protect whistleblowers who speak out against wrong doing or cover ups by an employer.

The Bill will provide for a single overarching piece of legislation, which is to be welcomed, as previously the Oireachtas had adopted a sectoral approach protecting whistleblowers that blew the whistle in discreet areas such as those of health, competition and consumer protection.

The Bill does not confine itself to protecting persons in the traditional employer/employee relationship but instead it uses the term "worker", the definition of which is sufficiently broad to include persons such as contractors, trainees, agency staff and home workers.

What are the objectives of the Bill?

The Bill, when enacted, is aimed at:

protecting workers from penalisation or reprisal where they make a disclosure of information, which comes to their attention in the workplace and which falls within the definition of a "protected disclosure" (see below); providing for a number of distinct disclosure channels for workers to use for the purpose of whistleblowing, to include those which are internal within the employment, to relevant bodies designated in the Bill (such as the Revenue Commissioners or National Employment Rights Authority) and also to, for example, the media, An Garda Síochána etc. The worker is subject to different evidential thresholds depending on which disclosure channel he uses with the objective of encouraging workers to use the internal whistleblowing channels in the employment or to relevant bodies, in preference to whistleblowing externally in the first instance (see below); providing redress for workers who suffer a detriment as a consequence of having made a "protected disclosure". What is a Protected Disclosure?

In order for a disclosure of information to fall within the definition of a "protected disclosure", the worker needs to be in a position to demonstrate that he reasonably believed that the information disclosed by him shows, amongst others, that:

a criminal offence is being committed; that a person is failing to comply with a legal obligation; that the environment is being damaged; that a person's health and safety is being endangered; that information relating to a...

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