September-30-2015 in Healthcare Law
What is it?
This legislation introduces international best practice for whistle-blowing in Ireland. It obliges public bodies to create whistle-blowing policies and offers greater protection to whistle-blowers who make what is termed as “protected disclosures”.
When does it come into effect?
The Act was commenced on 5 July 2014 but it has retrospective effect which means that a disclosure made before that date could be protected.
Does it concern the private sector?
Private sector employers are not statutorily obliged to put a whistle-blowing policy in place but it is recommended that they should. Furthermore, any policy that is actually put in place by a private sector business must be reviewed to ensure conformity with the legislation.
Who is protected by it?
The safeguards apply to a wide range of “workers”. Public and private sector workers, contractors, trainees, interns, agency staff, former employee, Gardai and Defence Forces are covered.
What is a protected disclosure?
A protected disclosure means the disclosure of relevant information which the worker reasonably believes tends to show wrongdoing and which came to light during the worker’s employment.
The motivation for the disclosure is not relevant in determining if a disclosure is protected or not.
What are relevant wrongdoings?
The definition of wrongdoings is broad and includes criminal offences, miscarriages of justice, non-compliance with legal obligations, health and safety concerns, damage to the environment and the unlawful or improper use of funds by a public body.
Who can whistle-blowers make a disclosure to?
There are five options for a worker who wishes to make a protected disclosure.
A worker may make a disclosure to his / her employer where it concerns wrongdoing relating to the conduct of some party other than the employer.
The other options are to approach a “prescribed person” (as appointed by the Minister for Public Expenditure and Reform), a Minister, a legal advisor or a third party. The Act sets out more stringent requirements to be satisfied before a disclosure to a third party (eg the media) will be protected.
How are whistle-blowers protected?
Whistle-blowers are protected from suspension and / or dismissal for having made a protected disclosure, from penalisation (eg demotion or unfair treatment) by their employer and also enjoy civil immunity from suit for damages and a qualified privilege in defamation law.
The identity of whistle-blowers is to be protected within reason. In certain circumstances, their identity may be disclosed eg if it is necessary to prevent risks to State security, public health or if it is in the public interest.
What should your whistle-blowing policy include?
A policy should include examples of concerns that might be raised. The policy should make it clear that employees have the option of raising a concern other than to their line management. The policy should state that the identity and confidentiality of the whistle-blower will be respected. Employers should provide training in relation to whistle-blowing.
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