Ireland’s Whistleblower Protection Reformation: An Example to Follow

By Dylan Vogel

In 2014, Sargent Maurice McCabe notified the Garda Síochána Ombudsman Commission that senior police officers were inappropriately removing the “penalty points” from the driving records of errant drivers.[1] McCabe’s actions resulted in the Garda Síochána, the national police service of Ireland, becoming the subject of national scrutiny.[2] The Irish government pledged the reformation of policing authority.[3] McCabe believes there is more accountability within the Garda Síochána, but since his report he has suffered abuse from professional colleagues.[4]

In response to retaliatory action, like that suffered by McCabe, the Oireachtas (the Irish legislature) passed the Protected Disclosure Act 2014 (“2014 Act”).[5] The goal of this law was to “[provide] necessary support for workers who raise genuine concerns . . . [develop] an ethical workplace and the valuable contribution of those who raise concerns about wrongdoing.”[6] The police have regulatory officials respond to workers’ proposed disclosures with a serious investigation and prevent retaliation against them, even if the investigation did not yield any actionable wrongdoing.[7] The 2014 Act represented the first major step in Irish legislative history towards protecting “whistleblowing” employees from professional retaliation.[8]

“Whistleblowing” has a mixed reputation.[9] From an insider’s perspective, it can represent a betrayal; the action causes harm to a professional organization’s reputation and consequentially causes resulting harm to all members.[10] However, from an outsider’s perspective, whistleblowing is an important regulating function within a professional workspace.[11] The policy reasons are simple: Whistleblowers correct institutional deficiencies and possess firsthand knowledge of issues not immediately accessible to the public at large.[12] Policies absent any remedy for pushback against legitimate whistleblowers acting in good faith can incentivize institutional misconduct and hinder a low-cost and precise method for correcting the shortcomings of professional institutions in the future.[13] Notwithstanding the beneficial effects the presence of whistleblowers provide the public from a policy perspective, shielding whistleblowers from retribution can prevent minor injustices and promote a culture of trust in both private and public institutions.[14] One method, adopted by a myriad of countries including Ireland, is through defending an employee’s right to protected disclosure.[15]

As of July 2022, the Irish government broadened its protections and pathways for whistleblowers through the “Protected Disclosures (Amendment) 2022” (“the Amendment”).[16] The Amendment responds to European Union Directive 2019/1937, which required member countries to transpose greater protections for whistleblowers into national law by December 2021.[17] Ireland’s protections were already among the most expansive throughout the world.[18] Whistleblower protections under the 2014 Act included broad disclosure rights, a wide scope of subject matter for disclosure, an expansive definition for what qualifies as harassment, a defense against gag orders, and anonymity for those reporting.[19] The only area the Irish law seemed to fall short is how well it defended victims of retaliation affected beyond the work place, including the families of whistleblower seeking protection under the law.[20]

The Tithe an Rialtais, location of the Department of Public Expenditure and Reform. Courtesy Pexels.

As a result, the Amendment broadens protections for those filing protected disclosures in important ways.[21] Most importantly, it mandates that private organizations with fifty or more employees implement channels for their employees to submit protected disclosures.[22] Additionally, it establishes the Office of the Protected Disclosure Commissioner to enforce this directive.[23] These two modifications will cause the greatest number of tangible effects by creating enforceable mandates and potential liability for hundreds of Irish companies.[24] The Amendment further broadens whistleblower protections because it expands the scope of reportable malfeasants, the definition of workers that may file protected disclosures, and what constitutes relevant information that whistleblowers may report to the Office of the Protected Disclosure Commissioner and the Workplace Relations Commission.[25]

The Amendment’s passage did not occur in a vacuum. European Union directives constitute binding decisions upon member states.[26] Ireland has some discretion in the method and manor that it implements Directive 2019/1937, but it must uphold the Directive’s intended result.[27] Failure to comply with European Union directives can result in a referral by the European Commission to the European Union Court of Justice to determine whether the member nation must take additional action.[28] Further non-compliance results in financial penalties that must be paid by the member nation to the European Commission.[29]

The Irish government cannot outright ignore a directive applied to it by the European Union.[30] However, the Irish legislature and executive branches have displayed initiative that go beyond simply complying with the mandate compelled by a larger governing body.[31] Regardless, whether by soft power or independent initiative, Ireland has transposed the Directive into law, though its fundamental motivation is unclear.[32]

In addition to the mandate imposed upon private organizations, the most substantive change is shifting the burden of proof to employers rather than alleged whistleblowers for whether an alleged act of penalization was based upon duly justified grounds.[33] Furthermore, employers must prove that these grounds did not result from a response to protected disclosures.[34] While there is at least one instance where the Amendment has not adequately  protected a retroactive complainant, this does not eliminate the benefit bestowed upon future beneficiaries or expanded protective disclosure rights.[35]

Whistleblowers have suffered abuse from their employers and colleagues.[36] The Irish government identified this problem and enacted legislation to address it.[37] Through public notification, whistleblowers can provide an avenue for improvement that positively affects public wellbeing.[38] The European Union recognized this benefit and mandated that its member countries expand their protections for those who issue public disclosures.[39] The Irish government has not displayed evidence that it needs the incentive, but has nevertheless shown both inclination and aptitude to strengthen the protections and channels for responders to raise concerns for the betterment of their industries.[40] While protections can be refined and improved, the passage of the 2022 Amendment represents further steps in the right direction.

[1] Maeve Sheehan, Gardai Wiped Penalty Points for Driver Who Was Caught Speeding Seven Times, Indep. (Aug. 30, 2014), https://www.independent.ie/irish-news/news/gardai-wiped-penalty-points-for-driver-who-was-caught-speeding-seven-times-30549592.html.

[2] Disclosures Tribunal: ‘McCabe is a Genuine Person’, BBC (Oct. 11, 2018), https://www.bbc.com/news/world-europe-45821886; see Garda Síochána – National Police Force, Citizens Info., https://www.citizensinformation.ie/en/justice/law_enforcement/garda_siochana_national_police_force.html (last visited Aug. 25, 2022).

[3] See generally Conor Gallagher, Policing Authority an ‘Impediment to Accountability’ Says Legal Academic, The Irish Times (Jul. 17, 2018), https://www.irishtimes.com/news/crime-and-law/policing-authority-an-impediment-to-accountability-says-legal-academic-1.3567043.

[4] BBC, supra note 2; Mark Hillard, Garda Whistleblower Maurice McCabe : ‘There’s More Accountability Now’, The Irish Times (July 22 2020), https://www.irishtimes.com/news/crime-and-law/garda-whistleblower-maurice-mccabe-there-s-more-accountability-now-1.4311132.

[5] See Protected Disclosures Act 2014 (Act No. 14/2014) (Ir.), https://www.irishstatutebook.ie/eli/2014/act/14/enacted/en/html.

[6] Id.

[7] Id.

[8] Id.

[9] See generally Samantha Feinstein & Tom Devine, Are Whistleblower Laws Working?, Int’l Bar Ass’n (Mar. 2, 2021), https://www.ibanet.org/article/EE76121D-1282-4A2E-946C-E2E059DD63DA.

[10] Id. at 28.

[11] See id.

[12] E.g., Daniel Politi, Whistleblower With Firsthand Knowledge of Allegations Comes Forward, Slate (Oct. 6,2019), https://slate.com/news-and-politics/2019/10/second-ukraine-whistleblower-firsthand-knowledge-inspector-general.html.

[13] Feinstein & Devine, supra note 9, at 9.

[14] Id.

[15] Minister McGrath Welcomes Enactment of New Law to Strengthen Whistleblower Protection, Dept. of Pub. Expenditure and Reform (Ir.) [hereinafter Protection].

[16] See Protected Disclosures (Amendment) Act 2022 (Act No. 27/2022) (Ir.), https://www.oireachtas.ie/en/bills/bill/2022/17/.

[17] Council Directive 2019/1937, 2019 (L 305/17), art. 26.

[18] See generally Feinstein & Devine, supra note 9.

[19] Protected Disclosures Act 2014 (Act No. 14/2014) (Ir.), https://www.irishstatutebook.ie/eli/2014/act/14/enacted/en/html.

[20] Feinstein & Devine, supra note 9.

[21] See Protection, supra note 15.

[22] See The Top 1000, The Irish Times, https://www.top1000.ie/companies (last visited Aug. 25, 2022).

[23] Protected Disclosures (Amendment) Act 2022 (Act No. 27/2022), ch. 3 (Ir.), https://www.oireachtas.ie/en/bills/bill/2022/17/.

[24] Irish Whistleblower Law: EQS Group Advocates for More Comprehensive Protection for Whistleblowers, Businesswire, https://www.businesswire.com/news/home/20220726005692/en/Irish-Whistleblower-Law-EQS-Group-Advocates-for-More-Comprehensive-Protection-for-Whistleblowers (last visited Sep. 1, 2022).

[25] Protected Disclosures (Amendment) Act 2022 (Act No. 27/2022) (Ir.), https://www.oireachtas.ie/en/bills/bill/2022/17/.

[26] See Applying EU Law, Eur. Comm’n, https://ec.europa.eu/info/law/law-making-process/applying-eu-law_en.

[27] Infringement Procedure, Eur. Comm’n, https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en.

[28] Id.

[29] Id.

[30] Id.

[31] See generally Feinstein & Devine, supra note 9.

[32] Protected Disclosures (Amendment) Act 2022 (Act No. 27/2022) (Ir.), https://www.oireachtas.ie/en/bills/bill/2022/17/.

[33] Id.

[34] Id.

[35] Liz Dunphy, Whistleblower ‘Let Down and Disappointed’ with New Protected Disclosure Legislation, Irish Examiner (Aug. 2, 2022), https://www.irishexaminer.com/news/arid-40931558.html.

[36] E.g., BBC, supra note 2.

[37] See generally Protection For Whistleblowers, Citizens Info. (Aug. 25, 2022), https://www.citizensinformation.ie/en/employment/enforcement_and_redress/protection_for_whistleblowers.html.

[38] Feinstein & Devine, supra note 9 at 70.

[39] Council Directive 2019/1937, 2019 (L 305/17), art. 26.

[40] E.g., Sarah Burns, Whistleblower Safeguards Do Not Go Far Enough, says McGrath, The Irish Times (Feb. 15, 2022), https://www.irishtimes.com/news/politics/oireachtas/whistleblower-safeguards-do-not-go-far-enough-says-mcgrath-1.4803391.