Whistleblowing On Fitness And Probity

Author:Mr John Breslin, David Nolan and James Scanlon
Profession:Maples and Calder

Introduction What action can a regulated financial service provider ("RFSP") take against an employee who has disclosed to the Central Bank ("CBI") suspicions that a colleague who performs a controlled function ("relevant person") is in breach of the fitness and probity standards (the "Standards") under the Central Bank Reform Act, 2010? In other words, can a RFSP sanction a whistleblower employee? Before legislation was introduced recently to protect whistleblowers, employers could treat whistleblowers as having breached their employment contract either in terms of the obligation of confidentiality or the implied duty of loyalty insofar as the employer's business was damaged or disrupted.  Currently, under Part V of the Central Bank (Supervision and Enforcement) Act, 2013 (the "Act"), a RFSP cannot penalise any of its employees who make, in good faith, a disclosure to the CBI, if the relevant employee has reasonable grounds for believing that an offence under any provision of financial services legislation may have been committed.  Importantly, however the Act does not apply to disclosures made anonymously.  The government has introduced new legislation, this 15 July 2014, to allow employees in any area of industry blow the whistle on perceived wrongdoings without fear of being penalised.  The Protected Disclosures Act, 2014 (the "PDA"), permits disclosures to be made anonymously and without an express requirement for good faith. Interestingly, the Act would not apply to disclosures which qualify as protected disclosures under the PDA, except in the case of the whistleblower being a person appointed to perform a pre-approval controlled function.  This would therefore reduce the ambit of the criminal sanctions set out in the Act against employers who penalize or threaten penalization against an employee who makes a protected disclosure under the Act. It is strongly recommended that RFSPs, if they have not already done so, introduce a company whistleblowing policy and, importantly, train employees on the required procedure for raising alarms about actual or potential wrongdoings by co-workers, including breach of the Standards. A RFSP's best interest will be served by controlling the manner in which any one of its employees seeks to raise the alarm on a perceived breach of the Standards and, importantly, keeping such disclosures in-house so far as permitted.   Pre-existing Legislation As regards legislation, Ireland has to date adopted a...

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