Whistleblower Protection in Ireland

Whistleblowing is the colloquial term for the exposure of corruption and wrongdoing within an organisation. The importance of protecting the whistleblower has been highlighted through numerous high-profile scandals in Ireland and abroad such as the ‘Garda McCabe whistleblower controversy', 'LuxLeaks' and 'Dieselgate'. It is widely recognised that the whistleblower is in a vulnerable position and is often subject to severe personal and professional detriment as a result of making a disclosure.[1] Consequently, many countries have introduced specific statutory protection for whistleblowers. The fundamental objective of such legislation is to protect the whistleblower but also to create a culture where the disclosure of wrongdoing is accepted and encouraged.[2]

This article will analyse the legal protection that is offered to whistleblowers in Ireland. The domestic legislation, namely the Protected Disclosures Act 2014 (the Act), will serve as a backdrop for a discussion of the EU Whistleblowing Directive (the Directive) which was enacted in December 2019. Ultimately, the impact of the Directive on the Act will be considered, and it will determine whether the Directive will copper-fasten the existing whistleblowing framework in Ireland.  

Protected Disclosures Act 2014

Ireland introduced its first overarching legislative framework for whistleblower protection in 2014.[3] The Minister for Public Expenditure and Reform at the time, Brendan Howlin TD, asserted that the legislation 'sets a new standard in terms of international best practice for whistleblower protection.' The Act was 'highly publicised and lauded on the basis that it introduced a panoply of protections for whistleblowers.'[4] Indeed, Ireland has been noted as one of only eleven countries in the European Union with comprehensive legal protection for whistleblowers.[5]

The Act provides protection for a worker who discloses relevant information which he or she reasonably believes tends to show one or more relevant wrongdoings in connection with their employment. The interpretation of this definition should be considered. It was held by the Equality Appeals Tribunal in the case of Darnton v University of Surrey that the Equality Tribunal had made an error when determining the 'reasonable belief' of Mr Darnton.[6] The case focused on whether the allegations made were factually correct instead of determining whether there was a 'reasonable belief which tended to show some wrongdoing'. In Babula v Waltham Forest College, it was held that there is both a subjective and objective element to be considered when determining whether there was a reasonable belief.[7] Interestingly, The Court of Appeal said that the 'belief' is subjective but the 'reasonableness' of the belief is to be determined objectively. 

The definition of 'worker' in the Act is intentionally broader than in other employment legislation. Former employees, agency workers, trainees and contractors are all protected under the Protected Disclosures Act.[8] In contrast with the Unfair Dismissals Acts 1977 to 2015, the Protected Disclosures Act does not require an employee to have one year of service to make a claim. This aspect of the legislation particularly creates a strong shield of protection for the 'worker' as defined by the Act. The Act sets out a list of 'relevant wrongdoings'. A particular wrongdoing which could be of great relevance in the context of the Covid-19 pandemic is; 'that the health or safety of any individual has been, is being or is likely to be endangered'.[9] Very recently, the Supreme Court in Baranya v Rosderra Meats Group Limited, held that a protected disclosure concerning health and safety does not have to relate to any other employees or third parties.[10]Therefore, it seems that an employee can make a protected disclosure which concerns the health and safety of himself alone. By virtue of the Act's wide and liberal interpretation of wrongdoings, the whistleblower is consequently protected in numerous and distinct circumstances.

The Act implements a three step disclosure regime, whereby an employee firstly consults their employer and if unsatisfied, can make a disclosure to other channels as set out in the Act.[11] If a whistleblower can prove that their disclosure links to their dismissal and comes within the requirements of the Act, the court may grant interim relief or compensation of up to five years in renumeration.[12] These remedies showcase that the legislative intent was indeed the robust protection of the whistleblower. This is especially true considering that maximum renumeration for unfair dismissal is two years. 

The EU Whistleblowing Directive

The Act was undoubtedly a significant milestone in Irish employment law. However, the shortcomings of the Irish whistleblowing regime have been highlighted by EU law. The Directive was enacted in December 2019 with the aim of ensuring a common minimum standard across EU Member States in relation to the protection of persons who report breaches of Union law in the context of employment.[13] The Directive, and its transposition in the near future is welcomed as it will address some of the weaker aspects of our regime whilst ultimately strengthening the protection offered to whistleblowers.

General Scheme of the Protected Disclosures (Amendment) Bill

In transposing the Directive into domestic legislation, the primary Act must be amended. The government published the General Scheme of the Protected Disclosures (Amendment) Bill (referred to as the Bill) in May of 2021. 

The current Act stipulates that only public bodies are required to put procedures in place for workers who make protected disclosures. The Workplace Relation Commission's Code of Practice highly recommends that employers in the private sector should put such procedures in place, although this recommendation is not legally binding.[14] In line with the Directive, the Bill will amend the Act to ensure that a large range of private bodies are required to have internal channels and procedures for the making of protected disclosures. 

The Act currently does not obligate the employer to respond to a report within any specific timeframe. The Bill imposes strict timeframes though, in that the employer is required to acknowledge receipt of the report within seven days and give feedback within three months ordinarily. Whilst employers may determine such timeframes as burdensome, this amendment will ensure reports by whistleblowers are dealt with in a timely manner. 

The Act stipulates that in cases of retaliation which don't involve dismissal, the burden of proof rests on the employee. This has been criticised and viewed as a significant obstacle for the whistleblower, especially in cases concerning large organisations who have greater access to finances and resources.[15] The EU Directive reverses this burden, thereby placing the protection of the whistleblower in front of the employers. This is a significant development and it remains to be seen how this will be ironed out in the amended Act. 

According to the Act, the motivation of the worker for making a disclosure is irrelevant, save for a minor limitation by virtue of section 11 which stipulates that compensation can be reduced by twenty five per cent if the investigation of the wrongdoing was not the sole or main motive of making the disclosure.[16] The EU Trade Secrets Directive 2016 subsequently amended the Act, providing that any worker making a public disclosure concerning a trade secret must prove that he or she did so in the 'public interest'.[17] This amendment was heavily criticised at the time because it meant that a whistleblower could be at risk of prosecution if such criteria were not satisfied.[18] This goes against the fundamental aim of whistleblower legislation and undoubtedly prioritises the employer and its organisation over the vulnerable worker. Article 21.7 of the EU Directive fortunately amends this position and requires that this restriction be removed. Notably, the Bill in its current form does not address this issue and arguably, does not fully transpose the directive into Irish law. 

The Directive has unexpectedly highlighted some shortcomings of Ireland's whistleblowing regime. As discussed above, the Bill plans to make significant amendments to the Act as it stands. We now await the detailed legislation which must be enacted before 17 December 2021. Unfortunately, it is unlikely that Ireland will meet this timeframe as the government has not yet published the Protected Disclosures (Amendment) Bill 2021. Nonetheless, it is clear that the Directive and the Act (as amended) will certainly strengthen the current framework in Ireland, particularly in the areas that have been discussed above. It will be some time before the precise impact of the Act (as amended) will be determined. 

Whether Ireland will uphold its reputation for providing leading whistleblower protection worldwide remains to be seen. Nonetheless, it is abundantly clear that overall, the Directive and Ireland's response so far is a remarkable and welcome development. 

[1] Estelle Feldman, 'Whistleblower Protection' (2007) 21(1) Annual Review of Irish Law 586. 

[2] Ibid.

[3] The Protected Disclosures Act 2014.

[4] Alicia Compton and Nuala Clayton, 'The Protected Disclosures Regime - Four Years On' (2018) 15(3) Irish Employment Law Journal 86.

[5] Emma Davey, 'Just Another Whistle Stop: The EU Whistleblowing Directive 2019/1937' (2021) 18(1) Irish Employment Law Journal 10.

[6] Darnton v University of Surrey [2003] ICR 615.

[7] Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] ICR 1026.

[8] The Protected Disclosures Act 2014, s (3)(1). 

[9] The Protected Disclosures Act 2014, s 5(3)(d).

[10] Baranya v Rosderra Meats group Limited [2021] IESC 77.

[11] The Protected Disclosures Act 2014, s 6.

[12] The Protected Disclosures Act 2014, s 11(2) and s (11)(1)(d). 

[13] European Parliament and Council Directive 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law [2019] OJ L 305/17.

[14] Code of Practice on Protected Disclosures Act 2014 (Declaration) Order 2015.

[15] Emma Davey, 'Just Another Whistle Stop: The EU Whistleblowing Directive 2019/1937' (2021) 18(1) Irish Employment Law Journal 10.

[16] The Protected Disclosures Act 2014, s 5(7). 

[17] European Parliament and Council Directive 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure [2016] OJ L 157/1.

[18] Transparency International Ireland, 'Open Letter to minister Heather Humphreys on amendments to the Protected disclosures Act 2014', available at < https://www.transparency.ie/resources/submissions/heather-humphreys-letter-PDA> accessed 2 December 2021.