Providing an Alternative to Silence:
Towards Greater Protection and Support for
Whistleblowers in the EU
COUNTRY REPORT: IRELAND
1
This report belongs to a series of 27 national reports that assess the adequacy of whistleblower
protection laws of all member states of the European Union.
Whistleblowing in Europe: Legal
Protection for Whistleblowers in the EU, published by Transparency International in November
2013, compiles the findings from these national reports. It can be accessed at
www.transparency.org. All national reports are available upon reque
st at xx@xxxxxxxxxxxx.xxx.
Responsibility for all information contained in the report lies with the author. Views expressed
in the report are the author’s own, and may not necessarily reflect the views of the organisation
for which they work. Transparency International cannot accept responsibility for any use that
may be made of the information contained therein.
The project has been funded with support from the European Commission. The sole
responsibility lies with the author and the Commission cannot be held responsible for any use
that may be made of the information contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
European Commission – Directorate-General Home Affairs
2
Providing an Alternative to Silence:
Toward Greater Protection and Support for Whistleblowers in the EU.
Country Report – Ireland
Lauren Kierans B.L
. (xxxxxxxxxxxxxx@xxxxx.xx.xx)
1. Summary
Whistleblowers are essential for uncovering wrongdoings in both the public and private sectors as they
are most often the ones who are in the best position to do so. The association of “whistleblower” with
“informant” has begun to evolve and shift in Ireland and there is now a growing appreciation of the
effective role that whistleblowers can play.
The existing sectoral approach to whistleblowing was arguably a weak attempt to provide protection to
whistleblowers. It does not offer protection to everyone and the protection that it does provide is
fragmented and confusing.
The sectoral statutory mandatory disclosure provisions are particularly controversial as they are
extremely burdensome on those obliged to make reports. It is essential that those in possession of
information disclose it to the relevant authority but the lack of protection provisions for those with
specialist knowledge coupled with the criminal sanction for failing to comply with their statutory
obligations is open to criticism. Such persons have little to no protection against professional and
personal damage when they comply with their obligations.
Whilst statutory voluntary whistleblowing should be promoted for the public good, without the
necessary protections the provisions are redundant. In order for the concept to have worked successfully
there needed to be protection provisions in place for all potential whistleblowers in all sectors. This
omission has resulted in superfluous voluntary disclosure provisions.
The publication of generic whistleblowing legislation, the Draft Heads of the Protected Disclosures in
the Public Interest Bill 2012, by the Minister for Public Expenditure and Reform, Brendan Howlin, has
been welcomed by most interested parties. There has been a slight reluctance on the part of certain
employers and employers’ organisations to openly welcome the Draft Heads as they fear that the new
legislation will leave their organisations open to reputational damage and malicious claims. However, if
the legislation is implemented to the highest possible standards, it should be accepted by both employers
and workers as a step in the right direction for all.
Under the Draft Heads, whistleblowers who fall within the definition of “worker” and make a disclosure
in good faith of a wrongdoing that is in the public interest, will be able to avail of equal comprehensive
statutory protections. This legislation has the benefit of encouraging good faith whistleblowing and also
protecting issues that are in the public interest. Nonetheless, despite the tremendous work that has been
done in producing the Bill there are many provisions that need to be amended, omitted or included in
order to ensure that all potential whistleblowers are offered appropriate protection. Without this, the law
could leave whistleblowers in the same precarious position that they are currently in under the sectoral
approach.
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2. Compilation, description and assessment of whistleblower laws
2.1 The current sectoral approach
(i) Introduction
The position in Ireland today as regards whistleblowing and whistleblower protection involves a sectoral
approach. A sectoral approach to whistleblower protection requires the passing of legislation to protect
potential whistleblowers in selected state, private or professional sectors. The approach does not offer
protection to everyone.1
Prior to the formal adoption of the sectoral approach to whistleblower protection in March 2006, there
were a number of whistleblower protection provisions in place. These provisions related to: the
protection of persons reporting suspicions of child abuse or neglect to authorised persons;2 persons
reporting alleged breaches of the Ethics in Public Office Acts;3 persons reporting competition law to the
relevant authority (and also protections specific to employees for doing so);4 protection for employees
against penalisation for exercising any right under the Safety, Health and Welfare at Work Act 2005;5
and to Gardaí and Garda civilian employees reporting corruption or malpractice in the police force.6
Since the formal adoption of the sectoral approach, whistleblowing protection provisions have been
expanded and adopted over a range of different legislation and these provisions take the form of either
statutory mandatory disclosures or statutory voluntary disclosures.
(ii) Statutory mandatory disclosures
A. Introduction
A duty to report is a burdensome requirement. However, its inclusion in Irish legislation is based on a
balancing exercise between the rights of the individual and the prosecution of crimes and the protection
of public policy, national security, and public good.7 It appears that the reasoning behind the inclusion
of provisions of this nature in legislation is two pronged: (i) to help the relevant bodies to overcome
difficulties that they would encounter with respect to crimes of a specialised nature; and (ii) where an
issue is of great public importance.8
A duty to disclose information in relation to possible offences existed in Irish Law until 1997 when,
under section 2 of the Criminal Justice Act 1997, the distinction between felonies and misdemeanours
was abolished. This resulted in the abolition of the offence of misprision of a felony, thus, abolishing a
general duty to inform of a criminal offence in Irish law.9 However, the State has now included a duty to
inform in various pieces of legislation in Ireland. This duty is sometimes coupled with protection for
such people where they have reported in good faith. The duty therein applies to two categories of
1 Transparency International (Ireland),
An Alternative to Silence: Whistleblower Protection in Ireland at 4
http://transparency.ie/sites/default/files/2010_Alternative_to_Silence_Ireland_v1.pdf (visited 6 October 2011).
2 Protections for Persons Reporting Child Abuse Act 1998, section 4.
3 Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission are empowered to investigate
complaints about alleged contraventions of the Ethics in Public Office Acts. Section 5 of the Ethics in Public Office Acts
1995 to 2001governs complaints by civil servants against other civil servants.
4 Competition Act 2002, section 50.
5 Safety, Health and Welfare at Work Act 2005, section 27.
6 Garda Síochána Act 2005, section 124.
7 Oireachtas Library and Research Service,
Disclosure of information: duty to inform and whistleblowing (16 December
2011)
at
3
http://www.oireachtas.ie/parliament/media/housesoftheoireachtas/libraryresearch/
spotlights/2011_Spotlight_duty_to_inform_173444[1].pdf (visited 20 January 2012).
8
Ibid.
9 Ivana Bacik,
Law on reporting serious offences abolished www.independent.ie/opinion/analysis/change-in-the-law-means-
there-is-now-noncriminal-offences-for-failure –to-repeat-crime-290234.html (visited 10 December 2011).
4
people. The first category to which the obligation applies is to those who have specialist knowledge10
and the second applies to those who have knowledge of all serious crimes,11 except for sexual crimes.
B. Specialist knowledge
In relation to those who have specialist knowledge, there are a number of legislative provisions that
apply to certain professionals.
(1) Designated persons-money laundering
Under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 certain designated
persons are required to make suspicious transaction reports (STRs) to the Garda Financial Intelligence
Unit (FIU) and Revenue Commissioners. The STRs must be made on reasonable grounds as a result of
information acquired during the course of business in relation to known or suspected money laundering
or terrorist financing offences. This duty also covers attempted offences.12 The definition of “designated
persons” is quite broad in order to cover all possible persons and bodies who could acquire the
necessary information.13 If a designated person fails to comply with their reporting obligations they are
liable on summary conviction or on conviction on indictment, to a fine and/or imprisonment. The
penalties are quite severe and without an accompanying protection provision under the Act to protect
designated persons from personal and professional damage, the inclusion of a criminal sanction is
arguably disproportionate.
(2) Pensions
Mandatory reporting obligations exist under the Pensions Acts.14 Auditors, actuaries, trustees, insurance
intermediaries and investment business firms15 are required to report to the Pensions Board (the Board)
where they have reasonable cause to believe that a material misappropriation or a fraudulent conversion
of the resources of a pension scheme has occurred, is occurring or is to be attempted.16 Protection is
provided for persons who make reports in good faith to the Board concerning the state and conduct of a
scheme.17 This protection ensures that those who make a report in good faith will not be considered as
breaching their obligations under the Act. However, a person will be guilty of an offence if they fail to
make a report under or knowingly or willingly make a report which is incorrect.18 A finding of guilt can
result in a summary conviction or a conviction on indictment to a fine of and/or a term of
imprisonment.19 Although a person required under this legislation to make a report would be in the best
position to uncover and disclose any wrongdoings, the penalty for the potential whistleblower who fails
to act is completely unmerited without the proper whistleblower protections included in the legislation.
10 Company Law Enforcement Act 2001, Companies Act 1963, Companies Act 1990, Company Law Enforcement
Regulations 2002; Companies (Auditing and Accounting) Act 2003.
11 Offences against the State (Amendment) Act 1998, Criminal Justice Act 1994, Criminal Justice Act 2011, Residential
Institutions Act 2002.
12 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, section 42(1).
13 (a). A credit institution, except as provided by subsection (4), (b). A financial institution, except as provided by subsection
(4), (c). An auditor, external accountant or tax adviser, (d). A relevant independent legal professional, (e). A trust or company
service provider, (f). A property service provider, (g). A casino, (h). A person who effectively directs a private members’
club at which gambling activities are carried on, but only in respect of those gambling activities, (i). Any person trading in
goods, but only in respect of transactions involving payments, to the person in cash, of a total of at least €15,000 (whether in
one transaction or in a series of transactions that are or appear to be linked to each other).
14 Pensions Act 1990, Pensions (Amendment) Act 1996, and the Pensions (Amendment) Act 2002.
15 Pensions Act 1990, section 82(a) –(e), as inserted by section 38 Pensions (Amendment) Act 1996.
16 Pensions Act 1990, section 83(1), as inserted by Pensions (Amendment) Act 1996, section 38.
17 Pensions Act 1990, section 84, as inserted by Pensions (Amendment) Act 1996, section 38.
18 Pensions Act 1990, section 83(3) as inserted by Pensions (Amendment) Act 1996, section 38.
19 Pensions Act 1990, section 83(4), as inserted by Pensions (Amendment) Act 1996, section 38.
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(3) Auditors in general
Auditors’ duties are expanded under the Criminal Justice (Theft and Fraud Offences) Act 2001, where
they are required to make a disclosure to the Garda Síochána against a firm whose accounts,
information, or documents indicate an offence under that Act committed by the firm itself or specific
officers of the firm.20 This duty overrides any professional obligations of privilege or confidentiality that
the person may have.21 An auditor who fails to comply with this duty is liable on summary conviction to
a fine and/or a term of imprisonment.22
Further duties apply to auditors under the Companies Act 1990.23 These duties involve the auditor,
having formed the opinion that the company has contravened their duty to keep proper books of
accounts,24 to serve a notice on the company itself stating their opinion of this contravention and also
notifying the register of companies also.25 They must also comply with any requests from the Office of
the Director of Corporate Enforcement (the Director) in relation to the furnishing of information or
giving access to documents.26 An auditor will be guilty of an offence for failing to comply with their
obligations under the Act.27 An auditor is also obliged to inform the Director of any indictable offence
committed under the Companies Acts.28
Auditors’ reporting duties also arise under the Tax Consolidation Act 1997. The Act provides that an
auditor or a tax advisor of a company or friendly society is obliged to report any offence committed by a
client who is not complying with the Acts or has committed tax evasion. An auditor will be guilty of an
offence if the auditor fails to comply with his obligations under the Act if he knowingly or willingly
makes a communication under which is incorrect.29 An auditor will be guilty of an offence if he fails to
comply with his obligations.30
Thus, auditor’s have a wide range of reporting duties under various pieces of legislation. However, there
are no protection provisions accompanying these reporting duties. This omission leaves such auditors
open to the risk of serious repercussions.
(4) Liquidators and receivers
Liquidators and receivers also have mandatory reporting obligations under the Companies Acts 1963-
2009. Under the Companies Act 1963,31 liquidators, on foot of both a court ordered and voluntary
winding-up of the company, must report any offence committed by any past or present officer or
member of the company to both the Director of Public Prosecutions (DPP) and the Director.32 If the
DPP or the Director decides to institute proceedings on foot of the information furnished by the
liquidator, the liquidator must give assistance in connection with the prosecution.33 The liquidator could
be required to give evidence if the matter proceeds to trial thus opening them up to the public domain as
a whistleblower. If the liquidator fails or neglects to give such assistance they will be liable for the costs
20 Criminal Justice (Theft and Fraud Offences) Act 2001, section 59(2).
21 Criminal Justice (Theft and Fraud Offences) Act 2001, section 59(2).
22 Criminal Justice (Theft and Fraud Offences) Act 2001, section 59(4).
23 Companies Act 1990 as amended by the Company Law Enforcement Act 2001.
24 Companies Act 1990, section 202.
25 Companies Act 1990, section 194(1) as amended by Company Law Enforcement Act 2001, section 74.
26 Companies Act 1990, section 194(3A) as inserted by Company Law Enforcement Act 2001, section 74.
27 Companies Act 1990, section 194(4) as amended by Company Law Enforcement Act 2001, section 74.
28 Companies Act 1990, section 194(5) as inserted by Company Law Enforcement Act 2001, section 74.
29 Taxes Consolidation Act 1997, section 1079(6).
30 Taxes Consolidation Act 1997, section 1079(6).
31 Companies Act 1963, section 299, as amended by Company Law Enforcement Act 2001, section 51.
32 Companies Act 1963, section 299(1), 299(1A), 299(2), 299(2A), and 299(3) as amended by Company Law Enforcement
Act 2001, section 51.
33 Companies Act 1963, section 299(4), as amended by Company Law Enforcement Act 200, section 51.
6
of an application made by the DPP or Director seeking for the liquidator to be ordered to provide this
assistance.34 To a certain extent, this provision is less burdensome than the ones addressed above as the
liquidator does not face a criminal sanction for any failure to comply with the duty to disclose
information. However, a liquidator of an insolvent company would be guilty of an offence if they fail to
provide a report35 to the Director within six months and at intervals as requested by the Director.36
The provisions under the Companies Acts that apply to liquidators apply also to receivers, with the
necessary modifications.37
(5) Accountants in general
A statutory duty to report also falls on accountants in some circumstances. Accountants have a “fairly
draconian mandatory statutory framework”.38 A recognised accountancy body must report to the
Director whenever its disciplinary committee or tribunal has reasonable grounds for believing that an
indictable offence has been committed by one of its members.39 This also applies where the body has
reasonable grounds for believing that a member has committed an indictable offence during the course
of liquidation or receivership.40 Failure to make such a report is itself an offence committed by each
officer of the body.41 This provision is quite stringent as it guarantees that all those who could possibly
be whistleblowers will be considered as such if there is a failure to carry out the statutory obligations.
C. Knowledge of serious crimes
There are a number of pieces of legislation that include provisions requiring persons who have
knowledge of serious crimes to come forward and disclose any information they have in their
possession.42 The inclusion of such provisions in legislation is premised on the fact that those
investigating and prosecuting serious crimes would be greatly assisted by those who have information in
relation to those crimes. The provisions place a duty on all citizens, rather than a particular specialised
group, to report knowledge or suspicions of serious crimes and criminalises the withholding of
information.
(1) White-collar crime
A recent addition to this group of legislation is the Criminal Justice Act 2011, more colloquially known
as the “White-collar Crime Act”. The 2011 Act was enacted on the 8th August 2011 in order to address
the difficulties associated with the investigations of white-collar crime. The Act applies to “relevant
offences”
ie offences that attract penalties of at least 5 years imprisonment that come within prescribed
groupings relating to white-collar crime.43
A controversial provision in the Act is section 19, withholding of information. This section places a
positive obligation on a person at any level of a corporation to provide information that would be of
material assistance in:
34 Companies Act 1963, section 299(5) as amended by Company Law Enforcement Act 2001, section 51.
35 The prescribed form is provided for in the Company Law Enforcement (section 56) Regulations 2002 (SI 324/2002).
36 Company Law Enforcement Act 2001, section 56.
37 Companies Act 1990, section 179.
38 Henry Murdoch,
Murdoch’s Dictionary of Irish Law (4th ed, Lexis Nexis, 2004), at 10.
39 Companies Act 1990, section 192(6) as inserted by of the Company Law Enforcement Act 2001, section 73.
40 Company Law Enforcement Act 2001, section 58.
41 Company Law Enforcement Act 2001, section 58 and Companies Act 1990, section 192(7) as inserted by Company Law
Enforcement Act 2001, section 73.
42 Offences against the State (Amendment) Act 1998, Criminal Justice Act 1994, Criminal Justice Act 2011, Residential
Institutions Act 2002.
43 Criminal Justice Act 2011, section 3(2)(a)-(h) sets out these offences as offences (i) relating to banking, investment of
funds and other financial activities; and (ii) company law offences; money-laundering and terrorist offences; theft and fraud
offences; bribery and corruption offences; consumer protection offences; and cybercrime offences.
7
(
a) Preventing the commission by any other person of a relevant offence;44 or
(
b) Securing the apprehension, prosecution or conviction of any other person for a relevant offence.45
It is an offence to fail to disclose as soon as practicable the information without reasonable excuse and is
punishable on summary conviction to 12 months imprisonment and/or a Class A fine or 5 years
imprisonment and/or unlimited fine on conviction.46
The section is very broadly drafted and it is unclear exactly how it will apply in practice. The Act targets
innocent persons who witness the commission of an offence, including past offences, or have
information about the future commission of an offence and criminalises their inactivity
.
In addition, it is unclear how the offence will tie in with other reporting obligations as already discussed.
The Act does not explicitly state that it repeals those provisions so it would be open to a court to choose
which one to apply.
The Act provides protection for the whistleblower by preventing them from being penalised by their
employer when they report suspected white-collar crime activity.47 The inclusion of these provisions is
recognition that whistleblower protection is often seen as the key to the detection of white-collar crime.
Penalisation is defined under section 20(6) as:
Any act or omission by an employer, or by a person acting on behalf of an employer, that affects an
employee to his or her detriment with respect to any term or condition of his or her employment, and,
without prejudice to the generality of the foregoing, includes (
a) suspension, lay-off or dismissal, (
b) the
threat of suspension, lay-off or dismissal, (
c) demotion or loss of opportunity for promotion, (
d) transfer
of duties, change of location of place of work, reduction in wages or change in working hours, (
e) the
imposition or the administering of any discipline, reprimand or other penalty (including a financial
penalty), (
f) unfair treatment, (
g) coercion, intimidation or harassment, (
h) discrimination, disadvantage
or adverse treatment, (
i) injury, damage or loss, and (
j) threats of reprisal.48
Penalisation can be difficult to prove, however, as an employer might dismiss somebody under another
pretext.49 This is made all the more difficult as section 20(3) provides that “penalisation” does not
include anything that is required for normal business operations or required for economic, technical or
organisational reasons.50 A decision by an employer would have to be well documented in order to
prove the reason for the discharge was one under sections 20(3)(a) and (b).
The Act appears to be limited in scope by failing to give protection to a person who is not an employee
but is an independent contractor engaged by the company to carry out particular work. Nonetheless, the
independent contractor will still be obliged under the Act to report wrongdoing. This may lead to a
situation where there will be no protection against the contractor’s contract not being renewed due to
whistleblowing.51
44 Criminal Justice Act 2011, section 19(1)(a).
45 Criminal Justice Act 2011, section 19(1)(b).
46 Criminal Justice Act 2011, section 19(2)(a) and (b).
47 Criminal Justice Act 2011, section 20 provides that: An employer shall not penalise or threaten penalisation against an
employee, or cause or permit any other person to penalise or threaten penalisation against an employee, (a) for making a
disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or (b) for
giving notice of his or her intention to do so.
48 Criminal Justice Act 2011, section 20(6).
49 Shelley Horan, “White Heat”, (October 2011), Law Society Gazette, at 27.
50 Criminal Justice Act 2011, section 20(3) provides that, “nothing in paragraphs (a), (c), (d), (e) and (f) of the definition of
“penalisation” shall be construed in a manner which prevents an employer from— (a) ensuring that the business concerned is
carried on in an efficient manner, or (b) taking any action required for economic, technical or organisational reasons.”
51 Horan, note 50, at 28.
8
The Act is also deficient in that it does not provide for immunity from prosecution, unlike the protection
that exists for competition law offences by virtue of a joint understanding between the Competition
Authority and the DPP under the Cartel Immunity Programme. Further, the Act does not guarantee
confidentiality which would leave the whistleblower wide open to retaliation for the disclosure made.
Under section 21(1), it is an offence for the whistleblower to disclose, recklessly or otherwise,
information that is false.52 This provision is incredibly burdensome as the whistleblower could face a
fine and/or imprisonment53 in situations where they are attempting to comply with their obligations
under the Act but in doing so they may be reckless as to the reliability of information disclosed.
The inclusion of a provision in the Act providing that an employer who penalises an employee will be
subject to a criminal sanction is a welcomed inclusion in the Act. A person found guilty of such an
offence will be liable on summary conviction, to a class A fine or imprisonment for a term not
exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not
exceeding 2 years or both.
(2) Offences against children and vulnerable persons
Mandatory reporting duties are seen as an important mechanism for the early detection of the abuse of
children and of vulnerable persons. It is considered to be one element of the child protection system,
providing both advantages and disadvantages to the effectiveness of the system as a whole. It may lead
to the early detection of child welfare concerns but at the same time may result in an overloading of the
system. If the system is overloaded it has been suggested that only the most serious suspicions will be
investigated by the relevant authorities thus reducing protections for those at risk.54 Nonetheless,
mandatory reporting provisions have been included in a number of Acts in an attempt to provide greater
detection of acts of abuse of children and vulnerable persons and also to ensure the protection of these
persons from such acts.
(i) Residential Institutions Redress Act 2002
Under the Residential Institutions Redress Act 2002 (RIRA 2002), a person must disclose information
that is provided to the Residential Institutions Redress Board or the Residential Institutions Redress
Review Committee and obtained by that person in the course of the performance of the function of the
person under the RIRA 2002 to (
a) a member of the Garda Síochána if the person is acting in good faith
and reasonably believes that such disclosure is necessary in order to prevent an act or omission
constituting a serious offence, and (
b) to an appropriate person (within the meaning of the Protections
for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably
believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to the life or to
prevent the continuance of abuse of a child.55
(ii) Protections for Persons Reporting Child Abuse Act 1998
52 Criminal Justice Act 2011, section 21(1) provides that, “an employee who makes a disclosure knowing it to be false or
being reckless as to whether it is false shall be guilty of an offence.”
53 Criminal Justice Act 2011, section 21(5) provides that, “a person guilty of an offence under subsection (1) or (2) shall be
liable (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or (b) on
conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both.”
54 Shannon, Geoffrey,
Third Report of the Special Rapporteur on Child Protection, A Report Submitted to the Oireachtas
2009 at 2.
55 Residential Institutions Redress Act 2002, section 28(5).
9
Under the Protections for Persons Reporting Child Abuse Act 1998, a person who would normally be
liable, will not be liable in damages56 in respect of a communication, whether in writing or otherwise, by
him to an appropriate person57 of his opinion that (
a) a child has been or is being assaulted, ill-treated,
neglected or sexually abused, or (
b) a child's health, development or welfare has been or is being
avoidably impaired or neglected. Such a person will only be liable if it can be proved that he has not
acted reasonably and in good faith in forming that opinion and communicating it to the appropriate
person.58
An employer must not penalise an employee for having formed an opinion that (
a) a child has been or is
being assaulted, ill-treated, neglected or sexually abused, or (
b) a child's health, development or welfare
has been or is being avoidably impaired or neglected and communicated it, whether in writing or
otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming
that opinion and communicating it to the appropriate person.59 It will be presumed, until the contrary is
proved, that the employee concerned acted reasonably and in good faith in forming the opinion and
making the communication concerned.60
However, a person who states to an appropriate person that (
a) a child has been or is being assaulted,
ill–treated, neglected or sexually abused, or (
b) a child's health, development or welfare has been or is
being avoidably impaired or neglected, knowing that statement to be false will be guilty of an offence.61
(iii) Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable
Persons) Act 2012
The Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable
Persons) Act 2012
provides that a person will be guilty of an offence if he knows or believes that an
offence, that is a scheduled offence, has been committed by another person against a child,62 or a
vulnerable person and (
b) he has information which he knows or believes might be of material
assistance in securing the apprehension, prosecution or conviction of that other person for that offence,
and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a
member of the Garda Síochána.63
(3) Offences against the State
The Omagh bombing in August 1998 forced the Government to speedily enact the Offences Against the
State (Amendment) Act 1998 (OAS(A)A 1998). The OAS(A)A 1998 was originally introduced in
response to sedition; however, it may now be used against organised crime, given that firearms offences
56 Protections for Persons Reporting Child Abuse Act 1998, section 3(2) provides that the reference in section 3(1) to liability
in damages will be construed as including a reference to liability to be the subject of an order providing for any other form of
relief.
57 Protections for Persons Reporting Child Abuse Act 1998, section 1 defines “appropriate person” as meaning a designated
officer or a member of the Garda Síochána. It further defines “designated person” as meaning an officer of a health board
appointed under section 2 of this Act to be a designated officer for the purposes of this Act.
58 Protections for Persons Reporting Child Abuse Act 1998, section 3(1).
59 Protections for Persons Reporting Child Abuse Act 1998, section 4(1).
60 Protections for Persons Reporting Child Abuse Act 1998, section 4(2).
61 Protections for Persons Reporting Child Abuse Act 1998, section 5(1).
62 Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012, section 1
provides that a “child” means a person who has not attained 18 years of age.
63 Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012, section
2(1) and section 3(1).
10
fall within the remit of the Offences Against the State Act 1939.64 The OAS(A)A 1998 created the new
offence of withholding information about a serious crime.
Under section 9 of the OAS(A)A 1998, it is now an offence for a person to withhold information,
without reasonable excuse, that the person knows or believes might be of material assistance in (a)
preventing the commission by any other person of a serious offence, or (b) securing the apprehension,
prosecution or conviction of any person for a serious offence.65 The information must be disclosed as
soon as it is practicable to a member of the Garda Síochána. A person found guilty of an offence under
section 9 of the OAS(A)A 1998 will be liable on conviction on indictment to a fine or imprisonment for
a term not exceeding five years or both.66
(iii) Statutory voluntary disclosures
A. Introduction
Voluntary whistleblowing refers to cases where there is no legal requirement to divulge information. It
may, however, be done out of a sense of civic duty (as in the case or reporting child abuse) or for
protection (as in reporting victimisation in the workplace). Increasingly, when reporting is voluntary,
the whistleblower is given protection by the law.67 While whistleblowing should be encouraged for the
public good, however, it is acknowledged that a person is unlikely to come forward voluntarily with
such information without some system for protection in being.68
Statutory voluntary disclosure provisions are provided for across a range of fields including, competition
law,69 employment law,70 bribery and corruption,71 health and safety law,72 child protection law,73 and
consumer law,74 to name but a few.75
B. The Cartel Immunity Programme
The Cartel Immunity Programme 2001 (CIP) is a form of voluntary whistleblowing. It has been
developed on the rationale that in general whistleblowers may be reluctant to come forward and report
certain offences without some form of protection in place to protect them also. This is an unusual form
of whistleblowing in this jurisdiction as it provides not just protection but in essence a reward for
blowing the whistle.76
64 Part V of the Offences Against the State Act 1939 permits offences to be scheduled under the Act and so to fall within its
remit. Firearms and explosives offences were scheduled by the Offences Against the State (Scheduled Offences) (No. 3)
Order 1940 (SI 1940 No. 334).
65 Offences against the State (Amendment) Act 1998, section 9(1). According to the Minister for Justice, Equality and Law
Reform, Alan Shatter T.D., section 9 of the 1998 Act was used on 83 occasions between the 1 June 2011 and the 31 May
2012. http://debates.oireachtas.ie/dail/2012/06/13/00007.asp
66 Offences against the State (Amendment) Act 1998, section 9(2).
67 Murdoch, note 38, at 8.
68 Oireachtas Library and Research Service, note 7,at 9.
69 Competition Acts 1991-2002.
70 Employment Permits Act 2006, Labour Services (Amendment) Act 2009, Employment Agency Regulations Bill 2009.
71 Prevention of Corruption (Amendment) Act 2001, as amended by the Prevention of Corruption (Amendment) Act 2010.
72 Safety, Health and Welfare at Work Act 2005, Health Act 2007.
73 Protections for Persons Reporting Child Abuse Act 1998.
74 Consumer Protection Act 2007.
75 There are also statutory voluntary disclosure provisions included in the Charities Act 2009, Chemicals Act 2008,
Communications Regulation (Amendment) Act 2007, Standards in Public Office Act 2001, Property Services (Regulation)
Act 2011, Garda Síochána Regulations 2007, National Asset Management Agency Act 2009.
76 In the UK, the Enterprise Act 2002 provides for immunity and leniency to be exercised by the Office of Fair Trading when
investigating cartel and competition offences. Also, under the UK Serious Organised Crime and Police Act 2005, the DPP,
Serious Fraud Squad, and other prosecuting agencies can grant immunity or agree to a reduction in sentence. In the US, the
11
The CIP was instigated by the Competition Authority (the Authority)77 and came into effect on the 20
December 2001. The Authority has identified the pursuit of Cartels as a top priority.78 Cartels are by
their very nature conspiratorial. The participants in the cartel are very secretive and hardcore cartels are
extremely difficult to detect and prosecute successfully.79 It has been recognised that cartel behavior is
harmful to consumers as it results in their having to pay more than they should for goods and services.80
Therefore, the purpose of the CIP was to improve the investigation and prosecution of price-fixing
offences as prohibited under the section 4(1) of the Competition Act 2002.81
By affording whistleblowers protection, the Authority enhances the possibility of receiving notifications
from persons who are involved in a cartel.82As a result, the CIP allows for a person who is involved in a
cartel to blow the whistle on an activity that they are involved in that violates the Act and request
immunity from the Authority so that the Authority can secure the detection and prosecution of other
offenders who might otherwise escape detection.83
A notable case where the CIP resulted in a successful investigation and prosecution of a hard-core cartel
on foot of a disclosure made by a whistleblower to the Authority is the
Galway Heating Oil Cartel case.
In this case, a corporate member of the cartel blew the whistle in 2001 alleging that heating oil
companies across the west of Ireland were engaging in price-fixing. It was alleged that most of the
distributors of heating oil in Galway city and county area had agreed to increase the margin on the price
of kerosene and gas oil. Immunity was granted by the DPP to the corporate undertaking and two of its
directors, one of whom attended the price-fixing meetings and would have given evidence except that he
died prior to the hearings. There have been twenty-four prosecutions since 2001 and eighteen
convictions. A
nolle prosequi was entered in six cases.84 The latest and last prosecution was in May
2012 where the former manager of a home heating oil company, Mr. Pat Heagarty was fined €30,000
and given a suspended two-year sentence for being one of the main players.85
C. Prevention of corruption
There was a perception in Ireland from independence until the mid-1990s that there was relatively little
corruption in Ireland.86 The few noted incidences of corruption were considered to be isolated until a
number of state sponsored investigations into political impropriety were carried out during the 1990s
Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 goes even further by requiring the Securities and
Exchange Commission to pay rewards for information that leads to enforcement sanctions of at least $1 million.
77 The Competition Authority is the statutory body established under section 10(1) of the Competition Act 1991 in order to
enforce and administer domestic and European competition law in the State.
78 The Authority’s Notice on the Cartel Immunity Programme, Preface.
79
Ibid.
80
Ibid.
81 Section 4(1) provides that: Subject to the provisions of this section, all agreements between undertakings, decisions by
associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or
distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void,
including in particular, without prejudice to the generality of this subsection, those which: (a) directly or indirectly fix
purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development or
investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other
trading parties thereby placing them at a competitive disadvantage; e) make the conclusion of contracts subject to acceptance
by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection
with the subject of such contracts.
82 Shelley Horan,
Corporate Crime (1st ed., Bloomsbury Professional, 2011) at 777.
83 The Authority, note 80, at para 4.
84The Competition Authority,
Heating Oil http://www.tca.ie/EN/Enforcing-Competition-Law/Criminal-Court-Cases/Home-
Heating-Oil.aspx (visited 5 May 2012).
85
Manager
of
Heating
Oil
Company
sentenced
for
price-fixing
http://www.irishtimes.com/newspaper/
ireland/2012/0504/1224315591378.html visited 5 May 2012).
86
Transparency
International,
National
Integrity
Study
2009
http://transparency.ie/sites/default/files/
NIS_Full_Report_Ireland_2009.pdf (visited 10 May 2012).
12
and 2000s.87 These investigations uncovered acts of corruption in certain sectors such as in politics, the
beef industry, town planning, the Gardaí and facilitation by the banks of tax evasion.
Until recently there was no incentive for whistleblowers to come forward with information to assist in
uncovering the widespread corruption and bribery on these shores. The Prevention of Corruption
(Amendment) Act 2010, however, introduced whistleblower protection for the first time in respect of
corruption and bribery offences. Whistleblower protection is now provided for employees who report
offences to appropriate persons under the Prevention of Corruption Acts 1889-2010 (POCAs 1889-
2010).
A whistleblower must make their disclosure to an appropriate person in order to attract the protections
under the Act. A person will not be able to avail of the protections under the Act if they communicate an
opinion that is knowingly or recklessly false, misleading, frivolous or vexatious,88 or furnishes
information in relation to that opinion that they know is false or misleading.89 This provision will protect
a person/body against false, malicious or vexatious claims that could be damaging to their professional
or personal reputation.
A whistleblower may also make a confidential disclosure to a confidential recipient.90 A confidential
disclosure cannot be dealt with anonymously,91 but provisions have been included in the legislation in
order to provide some protection for the whistleblower of his identity.92 Unfortunately, these provisions
provide only a basic level of protection for the identity of the whistleblower as the “all practicable steps”
requirement appears to be quite subjective. There needs to a strengthening of such confidentiality
provisions to ensure that the identity of the whistleblower will indeed be protected.
Under the Act, there are two types of protection for a whistleblower who reports an offence under the
POCAs 1889-2010. First of all, a whistleblower who would normally be liable in damages would not be
so liable.93 Secondly, a whistleblower is protected from penalisation or threat of penalisation by their
employer or any other person caused or permitted by their employer to do so.94 An employer who
contravenes this provision shall be guilty of an offence and shall be liable on summary conviction to a
maximum fine of €5000 and/or maximum 12 months imprisonment, or to a maximum fine of €250,000
and/or maximum imprisonment of 3 years.95 These provisions are encouraging for a whistleblower to
come forward as an employer would not only be liable for penalising the whistleblower but would also
be vicariously liable for any penalisation caused or permitted by another person. The sanctions for such
penalisation are quite high and as such this will provide greater protections for the whistleblower.
Further, a whistleblower can make a complaint to the Rights Commissioner in relation to an allegation
of a contravention by an employer of section 8A(5).96 A decision of a Rights Commissioner shall do one
or more of the following:
(a) Declare that the complaint was or, as the case may be, was not well founded;
87 Elaine Byrne,
political Corruption in Ireland 1922-2010, A Crooked Harp? (1st ed. Manchester University Press, 2012) at
143.
88 Prevention of Corruption (Amendment) Act 2001, section 8A((1)a)(i) and (ii) as inserted by POC(A)A 2010, section 4.
89 Prevention of Corruption (Amendment) Act 2001, section 8A(1)(b) as inserted by POC(A)A 2010, section 4.
90 Prevention of Corruption (Amendment) Act 2001, section 8A(16)(d) as inserted by POC(A)A 2010, section 4.
91 Prevention of Corruption (Amendment) Act 2010, Schedule 2, para 3(3).
92 Prevention of Corruption (Amendment) Act 2010, Schedule 2.
93 Prevention of Corruption (Amendment) Act 2001, section 8A(2) as amended by POC(A)A 2010, section 4 provides that
the reference to liability in damages would be construed as including a reference to liability to any other form of relief.
94 Prevention of Corruption (Amendment) Act 2001, section 8(A)(5).
95 Prevention of Corruption (Amendment) Act 2001, section 8A(9) provides that an offence under section 8A(8) can be dealt
with under section 13 Criminal Procedure Act 1967. Therefore, the indictable offence may be dealt with summarily.
96 Prevention of Corruption (Amendment) Act 2010, Schedule 1, para 1(1). There is a right of appeal to the Labour Court
under Schedule 1, para 2(1).
13
(b) Require the employer to take a specified course of action, which may include, in a case where the
penalisation constitutes a dismissal within the meaning of section 8A(13), re-instatement or re-
engagement; or
(c) Require the employer to pay to the employee compensation of such amount (if any) as is just and
equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect
of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair
Dismissals Act 1977.97
The inclusion of these provisions are to be welcomed but the limitation on the amount of compensation
is controversial as a whistleblower may not be able to find future work on foot of blowing the whistle on
a former employer.
2.2 The proposed generic approach: The Draft Heads of the Protected Disclosures in the Public
Interest Bill 2012
(i) Introduction
The present Government, which was formed in 2011, included in its Programme for Government a
commitment to introduce whistleblower legislation stating, “we will put in place a Whistleblowers Act
to protect public servants that expose maladministration by Ministers or others, and restore Freedom of
Information.”98
The Government initially intended for there to be a referendum on the issue of whistleblower protection
in October 2011 at the same time as a referendum on reducing judges’ pay, a referendum on providing
the Oireachtas with powers to conduct investigations, and the Presidential election.99 The Taoiseach
stated that the work “in respect of the preparation of the legislation for those is under way. They are
being treated as a priority.”100 Despite this, the plans for the referendum on whistleblower protection
were abandoned as a result of a decision by the Attorney General, Máire Whelan, in July 2011, to refuse
to approve the wording of the referendum.101 In response, the Minister for Public Expenditure and
Reform, Brendan Howlin, said that he hoped that the matter would go before voters sometime next
year.102
Minister Howlin had a personal interest in the matter as a result of pressure placed on him in 2000, when
he was Labour’s justice spokesman, to reveal the sources of information about alleged corruption in
Donegal to the Morris Tribunal. Minister Howlin, in responding to questions during an Oireachtas
debate on the matter stated:
I have more than a passing interest in the issue of whistleblowing, having had to traipse to the High
Court and the Supreme Court to protect the rights of individuals to give information to Members of the
97 Prevention of Corruption (Amendment) Act 2010, Schedule 2 para 3.
98 Department of the
Taoiseach,
Programme
for
Government
2011.
http://www.taoiseach.gov.ie/eng/
Publications/Publications_2011/Programme_for_Government_2011.pdf (visited 31 May 2012) at 27.
99 http://www.irishtimes.com/newspaper/breaking/2011/0615/breaking27.html (visited 8 March 2012).
100 http://www.irishtimes.com/newspaper/ireland/2011/0616/1224299001126.html (visited 8 March 2012).
101
Shaun
Connolly,
Plan
for
whistleblower
referendum
abolished
http://www.irishexaminer.com/
ireland/kfgbcwkfcwcw/rss2/ (visited 8 March 2012).
102
Ibid.
14
House on allegations of wrongdoing. I know how stressful this can be. At one stage I was on the hazard
for €500,000 in legal fees. 103
The Government changed direction in 2012 in relation to their approach to whistleblower legislation and
instead began to focus on drawing up generic legislation.104 The Draft Heads of Bill of the Protected
Disclosures in the Public Interest Bill
2012 (the Bill) were published by Minister Howlin on the 27
February 2012.105 Minister Howlin said that his Department had “looked at best international
practice”106 and that the Bill would use UK and New Zealand legislation as templates.107
On welcoming the publication Minister Howlin stated:
This Government is committed to a significant political reform agenda. A key part of this, as set out in
the programme for Government, is our commitment to legislate to protect whistleblowers who speak out
against wrongdoing, or cover-ups, whether in public or the private sector. This could encompass, for
example, criminal misconduct, corruption, the breach of a legal obligation, risk to health and safety,
damage to the environment or gross mismanagement in the public service.
The Heads of Bill published today will provide, for the first time for employees in Ireland, a single
overarching framework protecting whistleblowers in a uniform manner in all sectors of the economy.
This is a huge advancement from the previous piecemeal approach where the patchwork of protections
resulted in fragmented and confusing standards of protection. A key element of the proposed legislation
is that it treats all parties equally and fairly within an integrated legal framework that is open and
transparent.108
This Bill has been welcomed as a move away from the sectoral approach as it proposes to extend
whistleblowing protections beyond the limited categories of people who are protected by the sectoral
legislation. This approach will provide for a level playing field for all whistleblowers. However, despite
the positive reaction to the introduction of the legislation, interested parties have also raised concerns
with certain provisions contained therein. These concerns are addressed in detail and analysed below.
A. Key observations
(1) Definition of worker
103 752 Dáil Debates col. 3. For further information see: The Morris Tribunal,
Tribunal of Inquiry into Complaints
Concerning some Gardaí of the Donegal Division Sole Member The Honourable Mr Justice Frederick Morris The Morris
Tribunal Further Opening Statement of Counsel on Term of Reference (h) – The Anonymous Allegation Module http://www.morristribunal.ie/SITECONTENT_264.pdf (visited 31 May 2012).
104 Dáil Debates, note 253.
105 The Draft Heads of the Protected Disclosures in the Public Interest Bill 2012.
106 Whistleblowers Ireland,
Brendan Howlin promises the whistleblower legislation will be ‘best in the world’ http://whistleblowersireland.com/2012/02/28/brendan-howlin-promises-whistleblower-legislation-in-ireland-will-be-best-in-
the-world/ (visited 8 March 2012).
107 The UK’s Public Interest Disclosure Act 1998 (PIDA) has been in force since 1998 and is generally considered to
represent an example of good practice. The Parliamentary Assembly of the Council of Europe’ s Report,
The Protection of
Whistleblower, 14 September 2009 deemed the UK legislation to be the model in this field of legislation as far as Europe is
concerned. Certain elements of the New Zealand Protected Disclosures Act 2000 have also been adopted into the Bill but in
general it is the UK Act that has the most influence. The drafters also looked at the South African Protected Disclosures Act
2000.
108 Department of Public Expenditure and Reform,
This Bill will protect whistleblowers who speak out against wrongdoing
or cover ups, whether in public or the private sector http://per.gov.ie/2012/02/27/%E2%80%9Cthis-bill-will-protect-
whistleblowers-who-speak-out-against-wrongdoing-or-cover-ups-whether-in-public-or-the-private-sector%E2%80%9D-
howlin/ (visited 8 March 2012).
15
The protections contained within the Bill apply to public and private sector workers. Head 2 defines
worker to include employees, contractors and trainees.109 This definition is quite limited as it restricts to
whom the provisions can apply. There are persons outside the definition who may be in a position to
share information about impropriety or other risks of harm to the public. It is hoped that the Bill will be
amended so that the definition of worker is expanded to include volunteers, students, consultants, former
workers, job seekers, interns, family members of the person who makes the protected disclosure,
organisations that may suffer vicarious retaliation by virtue of a protected disclosure by an employee or
contractor, those mistakenly believed to be whistleblowers, attempted and suspected whistleblowers,
and those providing supporting information. If the definition of worker is not extended then potential
whistleblowers are left in the same precarious situation as they would be under the sectoral approach as
they may be left outside of the legislation entirely.
(2) Eligible disclosures
Head 4 of the Bill defines what types of disclosures are considered to be eligible in order to attract the
protections contained therein.110 The current list of protected disclosures in Head 4 does not address a
range of risks of harm to the public interest that should be subject to protected disclosure. It should be
expanded to include conflict of interest, abuse of authority, violations of a rule or regulation, negligent
use of public monies and a cover-up of any of the conduct listed under that Head. If it fails to expand the
list of protected disclosures then potential whistleblowers will not be protected if they blow the whistle
on any wrongdoing that has been omitted from the Bill. Also, certain proposed protected disclosures
may also pose a burden of proof on the worker that they may find unduly difficult to meet.
Additionally, experience shows that where the protected disclosure has been narrowly defined, as has
been the case with sectoral legislation, fewer public interest reports will be made.
Head 4(4) provides that, “a disclosure is not a protected disclosure where the person making the
disclosure does so knowing that the disclosure is false or misleading or where he/she made the
disclosure recklessly without regard to whether it was false or misleading, frivolous or vexatious.” This
provision is far too burdensome. This Head ties in with the requirement in Heads 5, 6, 7, 8,9,10, and 12
that all disclosures must be made in good faith. There is no definition of good faith in the Bill. The
absence of any definition in the UK Act has led to legal and practical difficulties for the courts,
employers and workers.111
(3) To whom shall a protected disclosure be made?
Head 5 provides that the disclosure shall be made in good faith to their employer and must be one of the
improprieties prescribed under Head 4.112 This provision extends the definition of a protected disclosure
to impropriety by a person other than their employer and also relates to a disclosure made by an agency
109 The Bill, note 107, at Head 2.
110 (1) A protected disclosure means any disclosure of information regarding any conduct of an employer made by a worker
which in the reasonable belief of the worker making the disclosure the information concerned shows or tends to show one or
more of the following: (a) That a criminal offence has been, is being or is likely to be committed; (b) That a person has
failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject; (c) That a miscarriage of
justice has occurred, is occurring or is likely to occur; (d) That the health and safety of any individual has been, is being or is
likely to be endangered; (e) That the environment has been, is being or is likely to be damaged; (f) That an unlawful, corrupt,
or irregular use of funds or resources of a public sector body has occurred, is occurring or is likely to occur; (g) That an
unlawful, corrupt or irregular use of public monies has occurred, is occurring or is likely to occur; (h) That an act, omission,
or course of conduct by a public official is oppressive, improperly discriminatory, or grossly negligent, or constitutes gross
mismanagement; (i) That information tending to show that any matter falling within any one of the preceding paragraphs,
whether alone or in combination has been, is being or is likely to be deliberately concealed.
111 The concept of good faith has attracted controversy in light of the way in which it has been interpreted by the Courts. This
has led to a call in the Report of the Shipman Inquiry by Dame Janet Smith for the requirement to be removed altogether.
See: Fifth Report, Cm. 6394 (2004), paras 11.6 and 11.10.
112 The Bill, note 107, at Head 5.
16
worker or contractor that is made to the responsible person. The provision also provides for a disclosure
to be made in accordance with an established whistleblower procedure to someone other than the
employer.
The Heads of Bill provide for external disclosure, including, among others, to regulatory bodies,
legislators, professional media and civil society organisations.
Head 8 is an important provision as it sets out the conditions under which a disclosure can be made to
other recipients, including the media, in order to attract the protections contained within the legislation.
This is a necessary protection for the employer as if a whistleblower was to go straight to the media
without following the stepped procedure, the damage caused to an organisation could be monumental,
especially if the disclosure is false, misleading, frivolous or vexatious. A protection of this kind has not
been included in earlier legislation.
(4) Penalisation
Penalisation is defined under Head 2 as including:
Any act or omission by an employer, or by a person acting on behalf of an employer, that affects a
worker to his or her detriment with respect to any term or condition of his or her employment and,
without prejudice to the generality of the foregoing, includes (a) suspension, lay-off, or dismissal, (b)
demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of
work, reduction in wages or change in working hours, (d) the imposition or the administering of any
discipline, reprimand or other penalty (including a financial penalty), (e) unfair treatment including
selection for redundancy (f) coercion, intimidation or harassment, (g) discrimination, disadvantage or
adverse treatment, (h) injury, damage or loss, and (i) reprisal.113
A provision similar to section 6 of UK Public Interest Disclosure Act 1998 could be included in the new
legislation. Section 6 inserted section 103A into the Employment Rights Act 1996 and provides that an
employee who is dismissed, “shall be regarded for the purposes of this Part as unfairly dismissed if the
reason (or, if more than one, the principal reason) for the dismissal is that the employee made a
protected disclosure.” A provision of this nature in the Bill would cover circumstances where the worker
is dismissed for a number of reasons but the principal reason for the dismissal is due to the making of a
protected disclosure.
(5) Confidentiality
The Bill does not provide that the identity of the person who makes the disclosure has to be kept
confidential by the recipient of the information. All that is required is that the recipient uses their “best
endeavours” not to disclose information that might identify the worker. This unfortunately will amount
to a disincentive for whistleblowers to come forward as they may fear repercussions on foot of their
identity being made known when they make a disclosure. In knowing the identity of the whistleblower it
will allow the employer to know what and who they are up against in order to defend the allegation to
the best of their ability. Nonetheless, confidential disclosures are protected in other jurisdictions.114
(6) Anonymous reporting
Head 11 provides that a disclosure made anonymously shall not be a protected disclosure for the
purposes of this Act. The Explanatory Note to the legislation provides that both Heads 15 and 16 are
113 The Bill, note 107, at Head 2.
114 For example in the United States under Whistleblower Act 1989, section 1213(h) and in India under the Public Interest
Disclosure and Protection to Persons making the Disclosure Bill 2010, section 4(1).
17
important safeguards to protect the confidentiality of a worker making a protected disclosure. It states
that it is not considered appropriate or practical that a worker could seek to avail of the protections
provided under the legislation on the basis of having made an anonymous disclosure. The Bill currently
only affords protection to those who make a confidential disclosure (
ie shares their identity with an
employer or a relevant body). It clearly states that an anonymous disclosure (
ie one where the reporting
person does not share their identity) will not be a protected disclosure under the Act.
It is worth noting that while the aim of the Bill should be to promote open communication, domestic and
international experience shows that this is not always possible. This is partly because workers
sometimes fear formal or informal retaliation for making a disclosure. Research also shows that most
prospective whistleblowers prefer to remain anonymous, while leaving the option of anonymous
reporting open as a last resort is generally regarded as best practice.115 In addition, section 301 of the US
Sarbanes-Oxley Act 2002 (SOX) already requires companies listed in the US and their subsidiaries to
establish protocols for anonymous reporting (there are more than 600 US subsidiaries in Ireland116).117
The current proposal will likely create needless confusion and deny hundreds of thousands of Irish and
migrant workers the same rights as those not subject to SOX to make a protected disclosure.
The legislation should protect a worker making an anonymous disclosure where the worker can be
identified as the source of a protected disclosure. The burden of proof should rest with the employer to
prove that any retaliation was not a result of the protected disclosure as it would be easier for an
employer to prove that the penalisation was not on foot of the making of the protected disclosure than
for the worker to prove that it was, as the employer should have a proper system in place that would
include records of decisions made, the reasons for those decisions and the steps taken in relation to those
decisions.
(7) Internal procedures
Under Head 26 it is proposed
that all
public sector organisations (including the Garda Síochána and the
Defence Forces) must establish and publish internal procedures for protected disclosures. The
requirement under Head 26 should be extended to all organisations in the public, private and non-profit
sector in receiving and dealing with information about a serious impropriety in or by that organisation so
as to ensure the best possible system of reporting not just for the whistleblower but for the employer too.
(8) Just and equitable awards
Schedule 4(1)(3)(c) of the Bill provides that contraventions of Head 12 will require the employer to pay
to the worker compensation of such amount (if any) as is just and equitable having regard to all the
circumstances, but not exceeding two years’ remuneration in respect of the worker’s employment
calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.118 Given
the potential loss of career and livelihood, the award of two years remuneration will serve as a deterrent
115 Heungsik Park, John Blenkinsopp, Kemal Oktem, Ugur Omurgonulssen, “Cultural orientation and attitudes toward
different forms of whistleblowing: A comparison of South Korea, Turkey, and the U.K.” (2008) 82(4) Journal of Business
Ethics 929 at 929.
116 US Department of State,
US Relations with Ireland http://www.state.gov/r/pa/ei/bgn/3180.htm (visited 20 June 2012).
117 The Sarbanes-Oxley Act was passed by US Congress in 2002 after the Enron and WorldCom scandals in order to protect
employees of publicly traded companies who report violations of Securities and Exchange Commission regulations or any
provision of federal law relating to fraud against the shareholders. Section 301(4)(B), provides that in relation to complaints,
each audit committee shall establish procedures “for the confidential, anonymous submission by employees of the issuer of
concerns regarding questionable accounting or auditing matters.”
118 Unfair Dismissals Act 1977, section 7(1)(c) as amended by the Acts of 1993 and 2001, provides, “payment by the
employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the
employment from which he was dismissed calculated in accordance with regulations under
section 17 of this Act) in respect
of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the
circumstances.”
18
to prospective whistleblowers. The Safety, Health and Welfare at Work Act 2005 and Employment
Permits Act 2006 provide for awards that are “just and equitable”.119 The Bill should provide for a level
of awards to whistleblowers that have been subject to reprisal of an amount that is “just and equitable in
the circumstances”. This would ensure a standardised level of compensation for all whistleblowers who
suffer repercussions as this is currently not a possibility for all whistleblowers.
(9) Rights Commissioner
Under the Bill, it is proposed to hear proceedings provided for under Schedule 4 before a Rights
Commissioner “otherwise than in public”. Experience from the UK shows that this may provide for
undue secrecy in the processing of such cases and make it difficult to evaluate the use and effectiveness
of the legislation.120 A provision could be included in the legislation that provides that proceedings
before the Rights Commissioner under the legislation shall be heard in public. This provision should be
similar in nature to section 6(6) of the Payment of Wages Act, 1991 which provides that, “proceedings
under this section before a rights commissioner shall be conducted in public unless, and to the extent
that, the commissioner, on application to him in that behalf by a party to the proceedings, decides
otherwise.”121
(10) Restricted disclosures
Under Head 22 disclosures relating to security, intelligence defence, and international relations will not
constitute a protected disclosure to a relevant body or to wider public disclosure if the disclosure of this
information could reasonably be expected to affect adversely (a) the security of the State, (b) the defence
of the State, (c) the international relations of the State, or (d) matters relating to Northern Ireland.122
Special rules and procedures are deemed to be necessary for all public bodies and agencies including the
Garda Síochána and the Defence Forces who have access to secret and highly sensitive information
relevant to the maintenance of the security of the State. This Head introduces certain limitations on the
internal channels through which such disclosures can be made and also excludes any wider external
public disclosures of such information. However, the legislation provides for a new disclosure channel
to a “complaints referee” for protected disclosures made in relation to these issues.
Head 23 sets down restrictions in respect of disclosures to the wider public of information relating to
law enforcement. In order to safeguard the integrity of criminal investigations the legislation proposes
external disclosures would be limited strictly to a Member of Dáil Éireann with no
potential for a
general outside disclosure (e.g. to the media). However,
prior to making a disclosure to a Member of
Dáil Éireann
the disclosure must be made to the relevant external investigatory body. A disclosure of
made in relation to law enforcement other than to through the restricted
disclosure channels cannot be a
protected disclosure.
The restricted basis on which an external disclosure can be made in relation to law
enforcement matters is justified on the basis of the existing robust
statutory framework provided by the
Garda Síochána Ombudsman Commission in
relation to the investigation of misconduct by individual
members of the Garda Síochána.
(ii) Conclusion on proposed generic approach
119 Safety, Health and Welfare at Work Act 2005, section 28(3)(c) provides that the Rights Commissioner shall require the
employer to, “to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the
circumstances.” Employment Permits Act 2006, Schedule 2, section 1(3)(c) provides that the Rights Commissioner shall
require the employer , “to pay to the employee compensation of such amount (if any) as is just and equitable having regard to
all the circumstances.”
120 PCaW
Employment Tribunal Consultation 2011-PCaW Submission www.pcaw.org.uk (visited 10 July 2012). For more
information see PCaW
Where’s whistleblowing now? 10 years of legal protection for whistleblowers (2010)
www.pcaw.org.uk (visited 10 July 2012).
121 Payment of Wages Act, 1991, section 6(6) .
122
19
The Draft Heads of the Protected Disclosures in the Public Interest Bill 2011 has been welcomed in
most quarters in this jurisdiction. It presents a new approach to whistleblowing and whistleblower
protection law in Ireland. Its aim is to provide a better mechanism for whistleblowing by including
greater protections for whistleblowers and employers and to ensure that at the same time matters that are
in the public interest are also protected. It is endeavouring to be a far more encompassing piece of
legislation than any of the earlier pieces of legislation that addressed the issue of whistleblowing.
Despite its honest efforts to provide a more robust legal regime than what existed with the sectoral
approach it still has a number of provisions that need to be addressed and amended.
Steps to address the problems associated with the Bill have been taken. In particular, the Joint
Committee on Finance, Public Expenditure and Reform met six times during the months of April, May
and June of 2012.123 It has heard from interested parties on both sides of the debate124 and will be
preparing a report on the scope and design of the legal regime for Minister Howlin. Also, Minister
Howlin himself has stated that, “I have an open mind on the legislation and will happily embrace any
ideas that might improve it.”125
It is hoped that when the Bill is published in 2013126 it will in fact be as Minister Howlin promised, “the
best in the world”.127
3. Perceptions and Political Will
(i) Introduction
It has been suggested that in Ireland the concept of whistleblowing is contentious given the historical
connotations of informing on a person.128 Since Ireland’s political dominance by Britain, native
informers were widely perceived to have assisted the British authorities in their rule of Ireland.
“Informer” became synonymous with “traitor”.129
This attitude transgressed into modern times as can be seen in the case of
Berry v Irish Times.130 This
case concerned a publication in the Defendant’s daily newspaper that included a photograph which
showed a man carrying a placard on which was written, “Peter Berry- 20th Century Felon Setter-Helped
Jail Republicans in England” and beneath the photograph, a news item about two Irishmen who were
stated to be serving sentences of imprisonment after convictions in England for having taken part in a
raid for arms in that country. The Plaintiff, Peter Berry, who was head of the Department of Justice,
argued that the words meant and were understood to mean, “that the plaintiff had helped in the jailing of
Irish republicans in England.”131
Berry failed in his defamation case but McLoughlin J dissenting commented:
123 Joint Committee on Finance, Public Expenditure and Reform 18April 2012, 23 May 2012, and 5, 6, 12 ,13 June 2012. For
a copy of all debates see: http://debates.oireachtas.ie/committees/2012/FI.asp.
124 The debates were attended by representatives from IBEC, ICTU, Irish Nurses and Midwives Organisation, IMPACT, Irish
Bank Officials Association, Transparency International (Ireland), A & L Goodbody Solicitors, Mr Paul Egan, Mr Eugene
McErlean, and Dr Elaine Byrne, all of whom made submissions on the Draft Heads.
125 Joint Committee on Finance, Public Expenditure and Reform (18 April 2012).
126
Department
of
the
Taoiseach,
Government
Legislation
Programme
for
Spring
Session
2013
http://www.taoiseach.gov.ie/eng/Taoiseach_and_Government/Government_Legislation_Programme/SECTION_A1.html
(visited 24 February 2013) at section A.
127 Whistleblowers Ireland,
Brendan Howlin promises the whistleblower legislation will be ‘best in the world’ http://whistleblowersireland.com/2012/02/28/brendan-howlin-promises-whistleblower-legislation-in-ireland-will-be-best-in-
the-world/ (visited 8 March 2012).
128 Henry Murdoch, “Touting for Business: The Rise of the Whistleblower” (October 2003) Law Society Gazette, at 8.
129 Transparency International (Ireland), note 1, at 5.
130
Berry v Irish Times (1973) IR 368.
131 (1973) IR 368 at 372.
20
He is called a felon setter because he has designated republicans, by giving information as to names and
locations, addresses perhaps in England, and so assisted to have such persons jailed. Put in other words,
the suggestion is that this Irishman, the Plaintiff, has acted as a spy and informer for the British police
concerning republicans in England, thus putting the Plaintiff into the same category as the spies and
informers of earlier centuries who were regarded as loathing and abomination by all decent people.132
Even the Plaintiff himself stated, “I can think of nothing more ugly, more horrible in this life than to be
called an informer. It has a peculiarly nauseating effect in Irish life.”133
In 1999, during the second stage of the Dáil Debate on the Whistleblower Protection Bill 1999, a
member of the Oireachtas stated that Irish people, “have an abhorrence of being called a tell-tale or of
informing on another. This stems from our history when we were, for eight hundred years under the
yoke of the British Crown.”134
However, the attitude of the public towards whistleblowers has become much more positive of late due
to the increasing resentment of the public towards those who are perceived to have abused their powers
of position, be they in the Church, in banks, in politics, to name but a few. As a result, whistleblowing
has become a much more prevalent occurrence than was ever seen before. This recognition of the
fundamental role that whistleblowers play stems from the realisation that a vast number of wrongdoings
would not have been unearthed without the disclosure of information by whistleblowers. This can be
seen in the high profile disclosures made in Ireland such as those made by Tom Clonan who blew the
whistle on the sexual harassment of women in the Defence Forces; Eugene McErlean who uncovered
the overcharging of Allied Irish Bank customers and reported it to the Financial Regulator; Bernadette
Sullivan who gave information on Dr Neary at Our Lady of Lourdes Hospital, Drogheda; assistant
principal officer Marie Mackle in the Department of Finance who consistently warned about an
overheating property market during 2005 and 2006; and Louise Bayliss who in 2011, went public over
plans to keep mental health patients in a locked unit over the Christmas period.
Ms. Bayliss had a six-month contract with the Irish Advocacy Network (IAN) as a trainee advocate for
mentally ill patients at hospitals in Dublin. This network was part-funded by the Health Service
Executive (HSE). In December 2011, Ms. Bayliss complained to the radio phone-in show, Liveline, that
five long-term female patients at St Brendan’s psychiatric hospital were being moved from an open
ward to a secure unit over the Christmas period. This secure unit already housed six patients. The HSE
said this was due to staff shortages and that the women would return to the open ward on January 16th,
2012.
A few days after the disclosure was made by Ms. Bayliss, there was public and political outcry. The
matter was raised in the Dáil by TDs Joe Costello, Derek Keating, Maureen O’Sullivan and Alex White.
Minister of State Kathleen Lynch gave an undertaking to visit the unit.
On 18 January 2012, Ms. Bayliss was informed that her contract of employment was terminated. She
was three months into the contract. The following day, Ms. Bayliss spoke of this termination on Liveline
and claimed the termination of her contract was at the instigation of the HSE. This was echoed in the
media. As a result, there were calls for her to be reinstated by TDs Richard Boyd Barrett, Derek Keating
and Joe Costello. In a matter of days, on the 23 January 2012, Ms. Bayliss was reinstated. Colette Nolan,
chief executive of the IAN, stated that, “(a)fter more in-depth and intensive consultation with colleagues
132 (1973) IR 368 at 379-380.
133 (1973) IR 368 at 380.
134506 Dáil Debates col. 5 (16 June 1999).
21
in the organisation over the last few days, we realise we made an error in this regard.”135 The IAN also
said that the HSE had no role in the decision to let Ms. Bayliss and another trainee go, or to reinstate
them, and that the decision to let them go related to some shortcomings in their current training
program.
Ms. Bayliss, on announcing that she had been reinstated by the IAN stated that she had no second
thoughts about any of her actions, stating “I don’t regret it…..I would do it again.”136 She expressed
hope that her case would give other whistleblowers the courage to come forward and expose abuses in
the Irish healthcare system. Fine Gael TD Derek Keating, who was with Ms. Bayliss when she
announced her reinstatement, said that the treatment of Ms. Bayliss underlined the urgent need for the
government to bring in new whistleblowing legislation as soon as possible. He stated that, “it is deeply
regrettable that an employee could lose his or her position for having spoken out on behalf of vulnerable
and voiceless individuals….How many more comparable situations are out there? How many good,
honest workers are being treated in this way?”137 He called on Minister Brendan Howlin to advance
legislation on Whistleblowers as soon as possible.138
One month later the Draft Heads of the Protected Disclosures in the public Interest Bill was published
by Minister Howlin.
This incident highlights the emerging positive attitude of the public and also of politicians towards
whistleblowers. There has been heightened media coverage of incidences of whistleblowing in Ireland
and this reflects the evolving attitude of the public towards whistleblowers. In addition, national
television and radio has broadcasted a number of high profile dramatised accounts of the role of
whistleblowers in Ireland139.
(ii) Case-study
There is very little case-law in respect of decisions before the courts concerning whistleblowers. One
notable case, however, is the Labour Court’s decision on the 3rd March 2009 in
Vodafone Ireland
Limited (Represented by Vodafone Ireland Limited) v. A Worker (Represented by Irish Municipal,
Public and Civil Trade Union).140 This case concerned an appeal by Vodafone Ireland Limited of the
Rights Commissioners Recommendation which awarded €14,500 to “A Worker” (John Bagge) on the
basis of personal difficulties and perceived risks associated with bringing forward certain allegations.
The issue in dispute concerned Mr. Bagge, an employee of Vodafone Ireland Limited, who discovered
that a colleague was involved in defrauding the company. Mr. Bagge disclosed the information in
relation to the fraud to management and this resulted in significant savings to the company. Mr. Bagge
apparently agonised over the situation for many months as he felt that it would have been detrimental to
his career to make false allegations against a senior member of management. When he did make his
135 Christine Bohan, Grangegorman Whistleblower Louise Bayliss reinstated by Irish Advocacy Network,
http://www.thejournal.ie/grangegorman-whistleblower-louise-bayliss-reinstated-by-irish-advocacy-network-335853-
Jan2012/ (visited 5th February 2013).
136
Ibid.
137
Ibid.
138
Ibid.
139RTÉ
ONE,
Whistleblower
http://www.rte.ie/tv/whistleblower/;
RTÉ
Radio
One,
Whistleblowers
http://www.rte.ie/radio1/whistleblowers/; RTÉ ONE
Prime Time: Rostrevor whistleblowers stranded despite assurances
http://www.rte.ie/news/av/2011/0623/media-2985710.html.
140
Vodafone Ireland Limited (Represented by Vodafone Ireland Limited) v. A Worker (Represented by Irish Municipal,
Public
and
Civil
Trade
Union)
CD/09/266
http://www.labourcourt.ie/labour/labcourtweb.nsf/cb8265a3e1c5c3f180256a01005bb359/80256a770034a2ab802575cf00511
5be?OpenDocument
22
suspicions known to management, he alleged that he was not given adequate support in assisting with
the personal difficulties caused to him by the event. As such, the Union's position was that Mr. Bagge
was not supported by management when he reported the fraud and that management failed in its duty of
care
to
offer
on-going
support
afterwards.
Vodafone Ireland Limited argued that Mr. Bagge was employed in the fraud detection area of the
company and by reporting the fraud he was merely doing the job assigned to him. It also contended that
it would be inappropriate for workers to be compensated for carrying out their contractual duties. In
addition, it was submitted that even though Mr. Bagge did report the fraud that was taking place, he
could have done so a lot sooner and saved the company from the significant losses it incurred. Finally, it
was contended by the company that it did support Mr. Bagge and made every effort to fulfil its duty of
care.
The court held that having regard to all the circumstances and the exceptional nature of the case that it
was satisfied that compensation should be awarded to Mr. Bagge. The court recognised that at the
material time there were no supports or guidelines available to Mr. Bagge to assist him in dealing with
the situation in which he was placed (supports and guidelines have since been put in place). Whilst Mr.
Bagge acted responsibly and reported his suspensions, the absence of appropriate supports and
procedures caused him to suffer significant anxiety and distress resulting in him requiring a prolonged
period of sick leave. The Court, however, believed that a more appropriate level of compensation was
€12,000.141
(iii) Whistleblower agencies and whistleblowing statistics
There is no independent agency, authority, or official that receives or investigates complaints of
whistleblower retaliation or improper investigations in Ireland. Transparency International (Ireland)
provides a telephone and e-mail service for anyone facing an ethical dilemma or considering reporting
wrongdoing at work. It’s Speak Up service is for people or organisations that have been the victim of
corruption or white collar crime. Such persons can get information and help when they need to report or
stop corruption via this service. There are no statistics available in relation to the prevalence of
whistleblowing.
141
Ibid.
23
4. SWOT
Strengths
Weaknesses
Cartel Immunity Programme
Diffusion of provisions in the
sectoral approach.
Prevention of Corruption legislation
Lack of protections for statutory
mandatory whistleblowers.
Lack of protections for statutory
voluntary whistleblowers.
Lack
of
an
independent
whistleblowing agency.
Opportunities
Threats
Proposed generic legislation.
Recessionary issues may result in the
Government failing to treat the
Improvement in the attitude of the
proposed legislation as a priority
public
and
politicians
towards
which may delay the passing of the
whistleblowers.
Act.
24
5. Charts
A. Criminal Justice Act 2011
Yes
No
Partial
Notes
Broad definition of
X
Provision relates solely to the disclosure of information that would
whistleblowing
be of material assistance in (a) preventing the commission by any
other person of a relevant offence, or (b) securing the apprehension,
prosecution or conviction of any another person who commits a
relevant offence as stipulated under the Act.
Broad definition of whistleblower
X
Only applies to employees and not for example to independent
contractors.
Broad definition of retribution
X
Includes any act or omission by an employer, or by a person acting
protection
on behalf of an employer, that affects an employee to his detriment
with respect to any term or condition of his employment, and,
without prejudice to the generality of the foregoing, includes: (
a)
suspension, lay-off or dismissal; (
b) the threat of suspension, lay-off
or dismissal; (
c) demotion or loss of opportunity for promotion; (
d)
transfer of duties, change of location of place of work, reduction in
wages or change in working hours; (
e) the imposition or the
administering of any discipline, reprimand or other penalty
(including a financial penalty); (
f) unfair treatment; (
g) coercion,
intimidation or harassment; (
h) discrimination, disadvantage or
adverse treatment; (
i) injury, damage or loss; (
j) threats of reprisal.
Internal reporting mechanism
X
External reporting mechanism
X
Reports are to be made to the Garda Síochána.
Whistleblower participation
X
Rewards
X
system
Protection of confidentiality
X
Anonymous reports accepted
X
No sanctions for misguided
X
An employee who makes a disclosure knowing it to be false or
reporting
being reckless as to whether it is false is guilty of an offence. A
person found guilty of such an offence will be liable on summary
conviction, to a class A fine or imprisonment for a term not
exceeding 12 months or both, or on conviction on indictment, to a
fine or imprisonment for a term not exceeding 2 years or both.
Whistleblower complaints
X
authority
Genuine day
X
in court
Full range of remedies
X
A complaint may be presented to the Rights Commissioner. Also, in
respect of a dismissal, proceedings can be instituted under the Unfair
Dismissals Acts 1977 to 2007 or damages can be recovered at
common law for wrongful dismissal.
Penalties for retaliation
X
A person found guilty of an offence will be liable on summary
conviction, to a class A fine or imprisonment for a term not
exceeding 12 months or both, or on conviction on indictment, to a
fine or imprisonment for a term not exceeding 2 years or both.
Involvement of multiple actors
25
B. The Draft Heads of the Protected Disclosures in the Public Interest Bill 2012
Yes
No
Partial
Notes
Broad definition of
X
Detailed definition but could be more comprehensive to include
whistleblowing
additional recognisable risks of harm to the public interest such as
abuse of authority, violations of a rule or regulation, negligent use
of public monies etc.
Broad definition of
X
Protection only applies to “worker”. This includes employees,
whistleblower
contractors and trainees.
Broad definition of
X
Does not include threat of reprisal.
retribution protection
Internal reporting
X
Included as part of a “stepped” disclosure regime in which a
mechanism
number of distinct disclosure channels are available – internal,
“regulatory” and external – and through which the worker can,
subject to different evidential thresholds, make a protected
disclosure.
External reporting
X
mechanism
Whistleblower
X
participation
Rewards
X
system
Protection of
X
Recipient of information only has to use “best endeavours” not to
confidentiality
disclose information that would reveal the identity of the
whistleblower unless the whistleblower consents to his identity
being disclosed; or that identification is necessary for the
investigation of the allegations; or to prevent serious risk to public
health, public safety or the environment; or is essential having
regard to the principles of natural justice.
Anonymous reports
X
accepted
No sanctions for
X
Misguided reporting will not be sanctioned but it will not be
misguided reporting
subject to the protections under the legislation.
Whistleblower
X
complaints authority
Genuine day
X
in court
Full range of remedies
X
(
a) A declaration that the complaint was or was not well founded;
(
b) The employer may have to take a specified course of action,
which may include, in a case where the penalisation constitutes a
dismissal, re-instatement or re-engagement;
(
c) The employer may have to pay to the worker compensation of
such amount (if any) as is just and equitable having regard to all
the circumstances, but not exceeding 2 years’ remuneration in
respect of the worker’s employment.
Two years remuneration is too limited.
Penalties for
X
retaliation
Involvement of
multiple actors
26
6. Bibliography
Case-law
Berry v Irish Times (1973) IR 368
Vodafone Ireland Limited (Represented by Vodafone Ireland Limited) v. A Worker (Represented by Irish
Municipal,
Public
and
Civil
Trade
Union)
CD/09/266
http://www.labourcourt.ie/labour/labcourtweb.nsf/cb8265a3e1c5c3f180256a01005bb359/80256a770034
a2ab802575cf005115be?OpenDocument
Legislation
Charities Act 2009
Chemicals Act 2008
Communications Regulation (Amendment) Act 2007
Companies Act 1963
Companies Act 1990
Companies (Auditing and Accounting) Act 2003
Company Law Enforcement Act 2001
Company Law Enforcement Regulations 2002
Company Law Enforcement (section 56) Regulations 2002 (SI 324/2002)
Competition Act 2002
Consumer Protection Act 2007
Criminal Justice Act 1994
Criminal Justice Act 2011
Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
Criminal Justice (Theft and Fraud Offences) Act 2001
Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons)
Act 2012
Draft Heads of the Protected Disclosures in the Public Interest Bill 2012
Employment Agency Regulations Bill 2009
Employment Permits Act 2006
Garda Síochána Act 2005
Garda Síochána Regulations 2007
Health Act 2007
Labour Services (Amendment) Act 2009
National Asset Management Agency Act 2009
Offences Against the State Act 1939
Offences against the State (Amendment) Act 1998
Offences Against the State (Scheduled Offences) (No. 3) Order 1940 (SI 1940 No. 334)
Payment of Wages Act 1991
Pensions Act 1990
Pensions (Amendment) Act 1996
Pensions (Amendment) Act 2002
Prevention of Corruption (Amendment) Act 2001
Prevention of Corruption (Amendment) Act 2010
Property Services (Regulation) Act 2011
Protections for Persons Reporting Child Abuse Act 1998
Public Office Acts 1995 to 2001
Residential Institutions Act 2002
Residential Institutions Redress Act 2002
Safety, Health and Welfare at Work Act 2005
Standards in Public Office Act 2001
27
Taxes Consolidation Act 1997
Unfair Dismissals Act 1977
Legislation from other jurisdictions
Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (United States)
Enterprise Act 2002 (United Kingdom)
New Zealand Protected Disclosures Act 2000
Public Interest Disclosure Act 1998 (United Kingdom)
Public Interest Disclosure and Protection to Persons making the Disclosure Bill 2010 (India)
Sarbanes-Oxley Act 2002 (United States)
Serious Organised Crime and Police Act 2005 (United Kingdom)
South African Protected Disclosures Act 2000
Whistleblower Act 1989 (United States)
Textbooks
Elaine Byrne, political Corruption in Ireland 1922-2010, A Crooked Harp? (1st ed. Manchester
University Press, 2012)
Shelley Horan, Corporate Crime (1st ed., Bloomsbury Professional, 2011)
Articles
Henry Murdoch, “Touting for Business: The Rise of the Whistleblower” (October 2003) Law Society
Gazette
Heungsik Park, John Blenkinsopp, Kemal Oktem, Ugur Omurgonulssen, “Cultural orientation and
attitudes toward different forms of whistleblowing: A comparison of South Korea, Turkey, and the
U.K.” (2008) 82(4) Journal of Business Ethics 929 at 929
Shelley Horan, “White Heat”, (October 2011), Law Society Gazette
Online material
The Competition Authority, Heating Oil http://www.tca.ie/EN/Enforcing-Competition-Law/Criminal-
Court-Cases/Home-Heating-Oil.aspx
Department of Public Expenditure and Reform,
This Bill will protect whistleblowers who speak out
against wrongdoing or cover ups, whether in public or the private sector
http://per.gov.ie/2012/02/27/%E2%80%9Cthis-bill-will-protect-whistleblowers-who-speak-out-against-
wrongdoing-or-cover-ups-whether-in-public-or-the-private-sector%E2%80%9D-howlin/
Department of the Taoiseach,
Programme for Government 2011.
http://www.taoiseach.gov.ie/eng/
Publications/Publications_2011/Programme_for_Government_2011.pdf
Department of the Taoiseach,
Government Legislation Programme for Spring Session 2013
http://www.taoiseach.gov.ie/eng/Taoiseach_and_Government/Government_Legislation_Programme/SE
CTION_A1.html
Joint Committee on Finance, Public Expenditure and Reform. For a copy of all debates see:
http://debates.oireachtas.ie/committees/2012/FI.asp
Oireachtas Library and Research Service,
Disclosure of information: duty to inform and whistleblowing
http://www.oireachtas.ie/parliament/media/housesoftheoireachtas/libraryresearch/
spotlights/2011_Spotlight_duty_to_inform_173444[1].pdf
PCaW
Employment Tribunal Consultation 2011-PCaW Submission www.pcaw.org.uk
PCaW
Where’s whistleblowing now? 10 years of legal protection for whistleblowers (2010)
www.pcaw.org.uk
RTÉ ONE,
Whistleblower http://www.rte.ie/tv/whistleblower/
RTÉ
ONE
Prime
Time:
Rostrevor
whistleblowers
stranded
despite
assurances
http://www.rte.ie/news/av/2011/0623/media-2985710.html
RTÉ Radio One,
Whistleblowers http://www.rte.ie/radio1/whistleblowers/
28
Transparency International, National Integrity Study 2009 http://transparency.ie/sites/default/files/
NIS_Full_Report_Ireland_2009.pdf
US Department of State,
US Relations with Ireland http://www.state.gov/r/pa/ei/bgn/3180.htm
Whistleblowers Ireland,
Brendan Howlin promises the whistleblower legislation will be ‘best in the
world’
http://whistleblowersireland.com/2012/02/28/brendan-howlin-promises-whistleblower-
legislation-in-ireland-will-be-best-in-the-world/
Newspaper articles
Christine Bohan, Grangegorman Whistleblower Louise Bayliss reinstated by Irish Advocacy Network,
http://www.thejournal.ie/grangegorman-whistleblower-louise-bayliss-reinstated-by-irish-advocacy-
network-335853-Jan2012/
Ivana Bacik,
Law on reporting serious offences abolished www.independent.ie/opinion/analysis/change-
in-the-law-means-there-is-now-noncriminal-offences-for-failure –to-repeat-crime-290234.html
Manager of Heating Oil Company sentenced for price-fixing http://www.irishtimes.com/newspaper/
ireland/2012/0504/1224315591378.html
Shaun Connolly,
Plan for whistleblower referendum abolished http://www.irishexaminer.com/
ireland/kfgbcwkfcwcw/rss2/
Reports
The Morris Tribunal,
Tribunal of Inquiry into Complaints Concerning some Gardaí of the Donegal
Division Sole Member The Honourable Mr Justice Frederick Morris The Morris Tribunal Further
Opening Statement of Counsel on Term of Reference (h) – The Anonymous Allegation Module http://www.morristribunal.ie/SITECONTENT_264.pdf
The Parliamentary Assembly of the Council of Europe’ s Report,
The Protection of Whistleblower, 14
September 2009
Report of the Shipman Inquiry by Dame Janet Smith for the requirement to be removed altogether. See:
Fifth Report, Cm. 6394 (2004)
Shannon, Geoffrey,
Third Report of the Special Rapporteur on Child Protection, A Report Submitted to
the Oireachtas 2009
Transparency International (Ireland),
An Alternative to Silence: Whistleblower Protection in Ireland at
4 http://transparency.ie/sites/default/files/2010_Alternative_to_Silence_Ireland_v1.pdf
29
1