IN THE WAKE Anglo trial and the Garda whistleblower scandal, it is reassuring to know that our Government is on the case, preparing a piece of legislation that will ensure that this kind of thing never happens again.
The Protected Disclosures Bill 2013, or the “Whistleblowers Bill”, is on its way to the Seanad, having made it through the Dáil. In many respects, it’s an excellent piece of legislation. It provides for a whole range of routes through which disclosures can be made, starting with internal channels and escalating to disclosures to regulatory bodies, legal advisors and politicians. This is necessary where experience has shown that internal authorities are often not interested in hearing from whistleblowers.
Where the Bill falls down, though, is under the section marked “protections”. Given that these protections are the entire point of the Bill, this is a matter for some concern. The Bill provides immunity to whistleblowers from criminal or civil liability, and, in some cases, anonymity. The main protections, though, are largely built on the existing employment law system, and these are problematic to say the least.
For example, the headline protection under the new Bill is that whistleblowers are entitled to significant monetary compensation for a dismissal. And this is true, technically. But in fact, there is very little compensation available for the mere fact of having been dismissed unfairly. Compensation under the unfair dismissals system is based on actual financial loss in consequence of having been out of a job. If you get a job a month after being dismissed, you are only entitled to a month’s compensation. If you do happen to find yourself out of work for a longer period of time, you may find your compensation cut because of a failure to mitigate your loss – that is, for not trying hard enough to get a new job. You’re damned if you do and damned if you don’t.
On top of this, costs are not awarded by the Employment Appeals Tribunal. So in the event that you win against your former employer, your legal fees will have to come out of the money you’ve been paid in compensation. This means that even if you win, you’re still worse off than if your employers had obeyed the law, and you’re still poorer because you did the right thing.
In fact, it was never legal to dismiss someone for whistleblowing. What the Bill does is provide for a much higher ceiling on compensation than ordinary unfair dismissal cases, five years’ earnings rather than two. However, this is still based on actual financial loss only. The compensation limit where there is no financial loss is unchanged at four weeks. Four weeks extra pay to get rid of an unwanted whistleblower must seem like a bargain to a misbehaving employer. And where costs aren’t awarded, the employer can feel confident that many sacked employees will wonder if the cost of taking legal action is even worth it. This is especially so where the current waiting list to have a case even heard in the EAT is about two years.
The act also provides that compensation will be 25% less where the whistleblowing was not motivated entirely by a wish to investigate wrongdoing. In reality, whistleblowers are often driven partly by personal grievances as well as by an ethical motivation. Things they might have been inclined to turn a blind eye to can become intolerable once they are mistreated by a supervisor or passed over for promotion.
This act allows the EAT to assess motivations and to penalise those who, though having done the right thing, are judged to have done so for the wrong reasons. Independent senators proposed that this provision only apply where the employee acted in outright bad faith, but this amendment was rejected – only the perfectly pure in heart can hope to avoid having their compensation reduced. The less noble of us should perhaps count ourselves lucky – the original penalisation for impure motives was set at 50%.
Either way, there is now a significant financial incentive for employers to attack the character of whistleblowers, much as Garda whistleblowers continue to be personally undermined. A whistleblower walks into his unfair dismissal hearing – which is held in public – with a target painted on his back.
In addition, the Bill provides protections where workers are not dismissed but are otherwise penalised for their whistleblowing. The mechanism set out in the Bill is identical to the one in the Industrial Relations Act 2004, for those penalised for trade union activity. These protections have been so unsatisfactory that the Government has recently announced, after years of union lobbying, plans to beef them up. However, it seems that whistleblowers will have to make do with the ineffectual old system.
The upshot of all of this is that the potential whistleblower still has far more reasons to keep his mouth shut than he does to speak up. It’s hard to see how anything in the Bill will provide any real incentive for people to come forward with information about wrongdoing, or how it will discourage wrongdoers from punishing those who do come forward. The new law replaces the ragbag of existing protections found in various other pieces of legislation.
In 2010, solicitor Andrew Sheridan wrote an article for the Law Society Gazette on these laws, concluding with a request that any fellow lawyers who had ever actually used any of these protections should contact him. He informs me that nobody ever did. One fears a similar fate for this Bill.
Fergal Crehan is a barrister practising in Data Protection law. He writes on legal subjects at www.fergalcrehan.com
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