Why must whistleblower employees stand alone?

Ensuring that the truth will out often leaves one person isolated, writes Kyran Fitzgerald.

The man with the whistle is often in a lonely place, as many a referee has discovered to his cost. Retribution against these whistleblowers can occasionally be swift and merciless, as the referee of a certain high-profile GAA match between Meath and Louth not so long ago found out to his cost.

But, increasingly, the whistleblowers are symbols of dissent, challenging authority in workplaces rather than serving as symbols of authority on the sports field. Some have challenged their employer and fellow workers, within the health service while others have operated to expose activities of governments.

Few followers of public affairs have not now heard of Edward Snowden or Julian Assange, whistleblowers par excellence. The reaction to their devastating disclosures have predictably been sharply mixed, reflecting the ambivalence we all feel towards those who blow the lid on activities that may be designed to protect the security of both society and vulnerable individuals, including intelligence sources operating in difficult, if not dangerous environments.

Many may question the advisability of their actions, but most will accept that they have been dictated by a sense of idealism.

In the past, men such as former Pentagon official Daniel Ellsberg and Mark Felt, aka Deep Throat, have been prepared to take on authority by revealing confidential evidence to the media, driven by disgust at the behaviour of people at the heart of power.

Today, the advent of social media has opened the way to an avalanche of revelation on the part of ordinary employees, many of whom cannot resist the temptation to post their thoughts about their place of work. These are the micro-whistleblowers, many of whom would be best advised to keep their whistle pocketed.

Employers have been left feeling jumpy by the trend towards disclosure of inside information, a sense greatly augmented where the organisation involved is connected to the security services.

This may help to explain, in part at least, the “trenchant” response on the part of Garda Commissioner Martin Callinan towards whistleblowers Maurice McCabe and John Wilson.

His remarks at the Oireachtas Public Accounts Committee have sparked a crisis at the heart of the Government. Organisations such as An Garda Síochána and the Armed Forces rely on the existence of strong bonds among those invited to serve these organisations. One is expected to follow commands without question, while teamwork is considered vital. Indeed, managements across modern corporations have drawn on this military sense of common purpose and bondedness.

However, the global financial meltdown, not to mention many health-sector scandals, has highlighted the danger in blindly following orders and in allowing groups to become places where dissent is frowned upon.

All-powerful bosses dragged down banks and damaged whole states. Few within their organisation, or among their highly paid armies of professional advisors, were prepared to take on these individuals

People who questioned their authority suffered bullying, character assassination, and damage to their careers. Many senior employees moved on rather than face the miscreant financial emperors.

All too often, the law has acted to protect the powerful wrongdoer. Critics, even now, face the prospect of damaging libel actions at the hands of well-resourced individuals, able to handpick the best advocates.

The authority of the employee whistleblower is a strictly moral one, centred on a sense of personal ethics and a willingness to challenge often deeply ingrained practices while standing out against the crowd. The individuals in question are not always the easiest of people. They tend to be cut from a different cloth, being hardy yet rugged characters. If they do not realise it at the outset, they soon come to realise that the road of the whistleblower dissenter can be a rocky one.

Legislators have moved to protect whistleblowers. An employee who makes a complaint under health and safety legislation cannot be penalised, while protection also exists in the case of employees disclosing instances of fraud, corruption, and company law offences. Employees performing their functions in relation to information and consultation legislation are also protected.

Last year, the Government published the Protected Disclosures Bill 2013. Modelled, at least in part, on the UK’s Public Interest Disclosures Act 1998, it introduces the concept of “protected disclosures” across all workplaces. The protection applies to all workers, including temporary and contract workers, interns, and former employees. The bill provides for retrospective protection — disclosures relating to acts/inactions occurring before enactment may be protected.

Disclosures may extend to acts “likely to occur” or offences “likely to be committed”. Interestingly, the bill provides that motivation behind a disclosure is irrelevant in determining whether the revelation attracts protection. Although, one imagines, should a case reach court or an employment tribunal, this will become of relevance. The whistleblower has a right of action in tort for a civil wrong where he or she is held to have suffered from having made a protected disclosure; the person making such a disclosure attracts immunity from civil liability.

Section 18 makes special provision in the case of disclosures in the area of security, defence, international relations, or intelligence. The bar which must be climbed to secure protection is significantly higher when disclosure is made not to management but outside the organisation to the media, social or otherwise, or to a civic society group. Some lawyers criticise this, arguing that, in many cases, disclosure outside an organisation is the only option.

A fascinating twist to the Garda whistleblower saga has been provided by Data Protection Commissioner Billy Hawkes, who criticised the whistleblowers for continuing to access the Garda Pulse system after they had fulfilled their “moral” duty to disclose details concerning the penalty points system. All employers and staff alike must be aware of the duties of confidentiality that exist under data protection law.

The picture, then, is complex. More countries are either introducing or upgrading whistleblower protections. However, the US Supreme Court, in a 5-4 ruling in the 2006 case of Garcetti v Ceballos, dealt a damaging blow to whistleblowing in a public-service context.

A US district attorney claimed he was passed up for promotion after finding that a sheriff’s warrant was tainted. Judge Anthony Kennedy held that a person’s rights to freedom of expression do not prevent public employees from being disciplined for speaking out on matters integral to their employment.

In a dissenting judgment, Judge Stevens held that while a supervisor/manager may take action against “inflammatory” or “misguided” speech, this does not apply in the case of “unwelcome” speech that “reveal facts the supervisor would rather not have anyone else discuss”.

By way of contrast, the High Court recently awarded €85,000 in damages and €25,000 for defamation after Mr Justice Kevin Cross concluded that Garda William Browne had been subjected to a campaign of bullying at the hands of colleagues.

In the words of NHS doctor Rita Pal, “whistleblowers often suffer character assassination. Going to court is a bit of a lottery and vindication does not guarantee subsequent fair treatment. Litigation, much like whistleblowing, attracts stigma.”

Given the scandals in the NHS and in our own health service, scandals leading to hundreds if not thousands of deaths, a strengthened disclosure regime would appear to be a matter of urgency.

According to David Lewis of Middlesex University, employers should be placed under a positive obligation to encourage disclosure. “Top management needs to demonstrate a commitment to a culture of openness,” he says.