Michael McGrath: Whistleblowers’ bill will put burden of proof onto employer

This article features Government Accountability Project and was originally published here.

The principles of openness, transparency, and accountability should be at the core of government and public administration. The embodiment of these principles in the day to day operation of public institutions is necessary to support trust in those bodies which is a cornerstone of a well-functioning democracy.

I have within my remit, as minister for public expenditure and reform, a suite of important legislation which supports and strengthens these principles and their operation. This encompasses Whistleblowing, Freedom of Information, Regulation of Lobbying and Ethics. In all of these, I have instructed my department to review existing legislation and to bring forward proposals to strengthen areas where weaknesses have been identified.

I would like to focus on one element of the work programme, the new Protected Disclosures (Amendment) Bill. The primary purpose of this draft legislation is to amend the Protected Disclosures Act 2014 to provide for the transposition of the EU Whistleblowing Directive. I will also be taking this opportunity to strengthen the existing legislation.

The 2014 Protected Disclosures Act was an innovative piece of legislation for its time, which drew heavily from recommendations of the Council of Europe, the G20, and the OECD, among others, as regards best practice in legislating for the protection of whistleblowers. At the time, Ireland was only the sixth country in the EU to enact a comprehensive whistleblower protection law and the 2014 act continues to be ranked highly in international comparisons for the protections it offers. A global study of whistleblower protection laws published in March by the International Bar Association and the Government Accountability Project ranked Ireland joint second in the world for the strength of its legislation.

Whistleblowers play an important role in corruption prevention in both the public and the private sector. Workers are usually the first to recognise wrongdoing in the workplace. In most instances, a worker will make a report to their employer, the employer addresses the wrongdoing and the case is closed.

However, where the necessary culture and processes are not in place in an organisation to accept and engage in a meaningful way with a report, there can be serious and damaging consequences for the worker who is acting in the public interest. Brave testimony to this effect has been given recently to the Oireachtas Committee on Finance, Public Expenditure, and Taoiseach as part of the process of preparing a fit for purpose Protected Disclosures (Amendment) Bill.

Persons who make protected disclosures are protected under law — they should not be treated unfairly or lose their job because they have made a protected disclosure. 

The act establishes channels through which a disclosure can be made — to their employer, to an independent regulator known as a prescribed person, to a minister in the case of public sector workers, and publically.

It allows for a system of stepped reporting — to the employer in the first instance who is best placed to address a wrongdoing, then to an independent prescribed person if the employer does not engage in a meaningful way, and, finally, publicly if the prescribed person does not engage. However, it also allows for workers to make a report in the first instance to an independent prescribed person if that is their preference.

It provides for redress for workers who are penalised for making a protected disclosure with the option to pursue that through the Workplace Relations Commission or through the courts. Workers are also protected from civil or criminal proceedings if a disclosure of confidential information is necessary in order make a report of wrongdoing. The act also overrides anything in a non-disclosure agreement that would prevent a worker from making a protected disclosure or taking proceedings against their employer for penalisation for having made a protected disclosure.

Far from weakening the current system, the Protected Disclosures (Amendment) Bill will strengthen the existing legislation in a number of important ways.

Volunteers, shareholders, unpaid trainees, board members, and job applicants are all currently excluded from existing protections under the 2014 act. This bill will change that and for the first time offer them the protection they deserve when they report wrongdoing.

The bill will also add clarity for workers who have proceeded with a protected disclosure.

It will introduce a requirement for all private sector companies with 50 or more employees to establish formal reporting channels and procedures. This will come into effect for companies with 250 or more employees from December 17 this year and for companies with 50 or more from December 2023. Companies in certain sectors and public bodies are already required to have formal reporting channels in place.

The bill will set out a standard process of acknowledgement, follow up, and, crucially, it will lay down clear obligations in terms of feedback within set timelines which must be followed, providing certainty to the whistleblower that their report is being engaged with in a meaningful and timely way. Under this legislation, there will be no room for kicking a protected disclosure into the long grass.

Crucially, the burden of proof in civil proceedings will be reversed with employers, not the whistleblower, required to prove that the act of penalisation did not occur because the worker had made a protected disclosure.

The bill will bring much-needed clarity to the interaction between protected disclosures and interpersonal grievances. For individual cases of bullying, for example, there are very clear employer obligations under employment law. However, if a culture of bullying or intimidation exists within an organisation then this would represent the basis of a protected disclosure. Far from making the current system weaker, this bill will make this distinction much clearer for an impacted worker.

The bill will establish a protected disclosures office in the Office of the Ombudsman. This office will support workers wishing to report to a prescribed person by directing them to the appropriate body. It will operate as a ‘prescribed person of last resort’, accepting and following up on reports where no prescribed person exists. This will ensure that no disclosure will fall through the cracks.

Finally, it will assist ministers in the assessment and follow up of reports made to ministers by public sector workers. The independence, impartiality, and experience of the ombudsman and his team is a natural fit for a best practice centre for managing protected disclosures. It is my strong view that this will improve outcomes for those public sector workers acting for the wider good, stepping forward to make a report of wrongdoing to a minister.

Following the valuable input of the Oireachtas Committee on Finance, Public Expenditure and Reform, and Taoiseach, I will publish the Protected Disclosures (Amendment) Bill and I look forward to working with members in the Oireachtas in getting this bill enacted. 

More information and the general scheme of the bill can be found at https://www.gov.ie/en/publication/e20b61-protected-disclosures-act-guidance-for-public-bodies/#eu-whistleblowing-directive