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Sunday 21 September 2014

Whistleblower law is open to abuse by self-serving workers

Barry Walsh

Published 11/08/2014 | 02:30

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Whistleblower Garda Sgt Maurice McCabe. Picture: Tom Burke
Whistleblower Garda Sgt Maurice McCabe. Picture: Tom Burke

Regulation of employment in Ireland is nothing new.

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With more than 30 significant laws, employers are used to operating in a constantly-evolving compliance regime.

However, the new whistleblowing legislation - the Protected Disclosures Act 2014 - is potentially one of the more significant employment laws in years.

It has been trumpeted by the Government as world class.

On a positive note, the act puts shape on what was previously a piecemeal and fragmented area of law. It is also reasonably clear on the standard expected from employees if they are to achieve protection as a whistleblower.

The law has been widely welcomed, particularly in light of recent high-profile whistleblower revelations.

While it won't be fashionable to query its impact, many will see it as a further example of heavy regulation and a source of yet more employee rights.

Some of these concerns include the lifting of the traditional 12 months service requirement for unfair dismissal claims.

A significant proportion of employee dismissals occur within the first 12 months of employment, or early on in a probationary period. This was, at one time, a relatively safe harbour for employers considering dismissing employees for good reason.

This employer protection has been whittled away over the years, with various exceptions to this rule being introduced, including where the employee claims that they were dismissed as a result of making a disclosure.

Such employees will not need to show any length of service to bring an unfair dismissal claim. This means that the former lower risk period of employment may now be effectively lost for employers. A well-informed employee raising an ordinary workplace grievance - dressed up as a protected disclosure in the days or hours before their dismissal - may become a better-protected species.

Employers may now need to be more risk averse when considering parting company with such employees for fear of unfair dismissal claims in the guise of whistleblowing protection.

The type of issues that may possibly give rise to a protected disclosure will not necessarily comfort employers concerned about spurious or misguided employee complaints.

A "miscarriage of justice" or a danger to the health or safety "of any individual" may be protected disclosures. Yet they are concepts capable of wide and subjective interpretation.

Equally serious, if not more so, is the significant financial jurisdiction of the Employment Appeals Tribunal to compensate those penalised as a result of whistleblowing. The facility to award up to five years remuneration to a wronged employee is an extraordinary potential remedy - compared to the normal cap of two years - and could have a traumatic financial impact on small employers particularly. This may make it very attractive for some enterprising employees to try and categorise "ordinary" workplace conflict as whistleblowing disputes.

For good reasons or bad, employers are likely to see a significant increase in whistleblowing disclosures. Some will undoubtedly be sincerely motivated and may well serve an important public interest. Others, though, will be motivated by self-serving reasons.

Still, employers have some ability to maintain control and can implement mechanisms to manage these risks.

Employers trying to keep matters "in house" will need to introduce whistleblowing policies. This is mandatory for public sector employers and highly advisable for others.

Making it much easier for employees to use internal disclosures mechanisms first, rather that the more public methods, is obviously in an employer's interests and will facilitate better management of employee complaints. Many Irish employers will already be familiar with international-style employee hotlines and other methods of confidential disclosures that many multinational employers based here already use.

As such, employers can set the tone and take the initiative in tackling the challenges thrown up by this new legislation.

By doing this - and by trusting the Irish courts and tribunals to implement remedies in a sensible way - they will help ensure that the legislation is used for the right reasons, and not as a convenient option for claim-focused employees.

Barry Walsh is a partner and Head of Employment Law at McDowell Purcell solicitors

Irish Independent

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