Thursday 27 June 2019

Fresh revelations on whistleblowers a reminder of how important it is for our laws to protect them

Justice Minister Frances Fitzgerald, left, and Garda Commissioner Nóirín O’Sullivan, right. Photo: Steve Humphreys
Justice Minister Frances Fitzgerald, left, and Garda Commissioner Nóirín O’Sullivan, right. Photo: Steve Humphreys

Jason O'Sullivan

The media reports this week that two senior gardaí have made protected disclosures to the Department of Justice will raise fresh questions about the treatment of whistleblowers within the force and within Irish society.

Both officers are alleging that senior Garda management conducted a major strategic campaign aimed at discrediting and destroying a whistleblower's character.

This latest revelation on the subject of whistleblowers within An Garda Síochána comes only a few months after the publication of the O'Higgins report in May. The basis for that report was an investigation by Mr Justice Kevin O'Higgins into various claims by whistleblower Garda Maurice McCabe of alleged Garda corruption in the Cavan-Monaghan Division.

Although no evidence of corruption per se was found in the report within the specific area division, it did highly commend Garda McCabe for his whistleblowing endeavours and found he had "performed a genuine public service at considerable personal cost" and "acted out of genuine and legitimate concerns".

The fallout from the findings of that report is coupled with the fresh ancillary revelations coming to light this week. Increased public scrutiny of An Garda Síochána as an organisation and those who wield power from within will be an inevitable repercussion and will likely remain a prominent source of contention for both Garda Commissioner Nóirín O'Sullivan and Justice Minister Frances Fitzgerald.

To understand the intrinsic nature of such contentious matters, it assists to first understand what the law states on the topic and to then evaluate its adequacy in protecting those reliant on making such protective disclosures.

Because those whistleblowers who choose to do the right thing can become victimised and ostracised by those who are benefiting from wrongdoing.

The act of whistleblowing is a vitally important one for a democratic, fair and civic society.

A whistleblower is commonly defined as "any individual, such as an employee, supplier, contractor or client, who exposes or reports any type of information or activity that could be deemed illegal, unethical or wrong either internally or externally about a public or private organisation".

The majority of legitimate whistleblowers do so out of their perceived civic duty to stop or prevent alleged wrongdoing, which if continued could be harmful to their fellow citizens. Therefore, whistleblowers can be of invaluable assistance to government departments and regulators in particular, in providing crucial information that can mitigate risks to public service delivery.

For instance, the exposure of abuse to patients at the HSE-run Áras Attracta nursing facility in Co Mayo was dependent on the bravery of three whistleblowers, which prompted RTÉ to investigate the facility and broadcast its controversial findings in 2014. Members of staff who featured on the RTÉ piece were subsequently arrested and some found guilty of assault in February 2016.

The primary legislation aimed at protecting whistleblowers is the Protected Disclosures Act, 2014. It was enacted in July of that year and for the first time in Ireland provided comprehensive whistleblowing legislation across all sectors.

The Act protects and safeguards workers in all sectors, in accordance with international best practice. The concept of 'worker' includes employees (both public and private sector), contractors, trainees, agency staff, former employees and interns and members of An Garda Síochána.

The act provides for "protected disclosures" of relevant information by a worker, who must have a "reasonable belief" such information "tends to show wrongdoing". The motivation of the worker in making such a disclosure is irrelevant, when determining liability, although it may be taken into consideration in any subsequent reduction of a compensation award.

Furthermore, the onus of proof rests on the employer rather than on the whistleblower making the allegation - in effect the disclosure is presumed to be a "protected disclosure" unless it can be proven to the contrary.

Relevant wrongdoings under the Act include the following:

commission of a criminal offence;

miscarriage of justice;

non-compliance with a legal obligation, contractual or statutory;

endangerment of health and safety;

misuse of public monies or mismanagement by a public official;

damage to the environment;

concealment or destruction of information relating to any of the above.

The Act provides whistleblowers with a range of specific protections, which far outweigh existing protections in other areas of employment legislation.

For instance, where an employee makes a protected disclosure, that employee can be awarded compensation of up to five years remuneration for unfair dismissal on the grounds of having made a protected disclosure. This is in sharp contrast to the two years remuneration available under the existing unfair dismissals legislation.

Furthermore, where an employee who claims to have been dismissed or threatened with dismissal for having made a 'protected disclosure', they can apply to the Circuit Court to restrain their employers from carrying out the dismissal.

There is also a right of action under the 'law of tort' where it can be shown that the whistleblower or family member has suffered detriment, coercion, intimidation, harassment or discrimination as a result of such disclosures.

Some other important protections afforded to whistleblowers under the Act is that of immunity from criminal prosecution for such disclosures, and qualified privilege under defamation law.

Another essential protection is that of privacy entitlements for whistleblowers, who are afforded identity protection, albeit with some exceptions.

At the time this Act was being introduced, certain business advocates and industry groups opposed its introduction on various grounds, as expected. These ranged from legitimate fears that some self-serving workers would abuse such procedures and act contrary to the spirit in which it was intended. Others argued it unfairly increased administrative burdens for employers and organisation in an already saturated regulatory regime. Legislation, particularly one which tries to mitigate against systemic illegality and wrongdoing, will always polarise certain individuals and groups, and will inevitably be open to isolated instances of abuse. Notwithstanding this, it is important to recognise the enormous contribution and essential role such legitimate whistleblowers perform when their honourable actions become the catalyst to positive change and cultural improvements.

Therefore, an onus lies with all employers and organisations such as An Garda Síochána to ensure their workers who try to do the right thing in difficult circumstances are adequately protected and applauded, rather than ostracised and demeaned as currently alleged.

Jason O'Sullivan is a solicitor and public affairs consultant

Irish Independent

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