Whistleblower Protection - An Overview

NCREASED SAFEGUARDS IMPLEMENTED PURSUANT TO PROTECTED DISCLOSURES ACT, 2014 (PDA) SEE DRAMATIC INCREASE IN WORKERS REPORTING CONCERNS

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WHISTLEBLOWER protection is one of the few effective ways of encouraging accountability within public and private organisations and discouraging illegal, corrupt or wrongful activities by organisations. Protecting whistleblowers can also be successful in combating corruption within private organisations and public bodies therefore the government’s decision to finally introduce an overarching statutory instrument aimed at protecting workers who make disclosures of information relating to their employers which is in the public interest has been broadly welcomed.

Whistleblower protection can ensure that misappropriation of state funds is curtailed; it can also assist in drawing attention to the actions of institutions that may place whole economies in jeopardy. Its uses are not confined to demonstrating economic wrongs; proper protection for whistleblowers can help uncover criminal wrongs committed by companies, which may affect their employees, consumers or the environment or it may uncover the abuse of personal liberties (which was the case when a captain in the Irish Army blew the whistle on the sexual harassment of women in the defence forces).

The personal cost associated with blowing the whistle for employees is the main disincentive for voicing concerns with an internal committee, regulatory body or even a wider audience such as the media. As an employee in an organisation one will often have access to confidential information, the disclosure of such information will often be frowned upon as there is generally an inferred understanding that employees will be faithful to their employers and uphold their reputations. To disclose information that may be considered damaging to the organisation could be interpreted by management or fellow employees as an act of disloyalty or treachery. The protections introduced by the PDA foster a safe environment for workers to voice their concerns without fear of penalisation.

PURSUANT to the provisions of the Act, 72 state bodies were appointed as potential recipients of protected disclosures from workers. The Act also required each body to formulate and publish an annual report which details the number of protected disclosures made and how the particular disclosures were responded to. The Central Bank is one of the prescribed bodies that must publish an annual report, and their 2016 report records 44 protected disclosures. In 2015 there was just one protected disclosure made pursuant to the legislation. The increase in disclosures must be welcomed as unequivocal proof that the PDA is working and has been a success, although it took considerable time for the first steps to be taken. A Whistleblower Protection Bill was originally published by Pat Rabbitte in 1999, and although broadly welcomed it was not enacted and instead the Government of the time chose to pursue a sectoral approach whereby they inserted whistleblower protection provisions into particular pieces of legislation (for example the Competition Act, 2002 which at Section 50 provides protection from liability in damages for persons who make a statement that an offence has been committed by an organisation under the competition acts).

The PDA should, in general, be considered a legislative success and the drafters of the legislation must be commended for identifying the academic criticisms of the UK’s equivalent legislation the Public Interest Disclosure Act, 1998 and not making the same mistakes. Section 10 of PDA may be slightly too restrictive in that it limits workers’ abilities to make disclosures to external bodies, and excludes workers from availing of the legislative protections when there is an element of personal gain involved, but the writer accepts that in order to obtain governmental support these concessions were probably necessitated.  

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