Confusion over law on exposing wrongdoing

CONFUSION over the new whistleblowing legislation means workers lack the confidence to report wrongdoing within their workplace, trade unions have claimed.

The Criminal Law Act 2011 was fast-tracked through the Dáil over the summer in order to help authorities weed out any criminality in the financial sector which may have been perpetrated prior to the economic collapse.

The legislation refers to wrongdoing in a number of areas including company law, banking, money laundering and “financial terrorism”, theft and fraud, bribery and corruption and competition and consumer protection.

Trade unions particularly welcomed a clause which meant any penalisation of a whistleblower by his or her employer could result in a prison term of up to two years and the right of the whistleblower to sue for damages.

However, concerns have now arisen about section 21 of the legislation, which makes it an offence for an employee to make a disclosure “knowing it to be false or being reckless as to whether it is false shall be guilty of an offence”.

Furthermore, failure to report a crime covered by the act could result in a prison sentence of up to five years.

Irish Congress of Trade Unions legal affairs officer Esther Lynch pointed out that difficulties also arise with regards to the timing of reporting the information.

“It remains unclear if the information should be reported before, during or after an internal investigation into the fraud,” said Ms Lynch. “And it’s the worker who is at risk from this lack of clarity.”

ICTU recently wrote to the Department of Justice proposing that guidelines or even a code of practice of be formulated to give guidelines both on what constitutes an offence under the act and governing an in-house reporting structure within enterprises.

However, Justice Minister Alan Shatter’s office replied this week telling ICTU that a code of practice would be inappropriate as the interpretation of act in regard to any case would be a matter for the courts.

Further legislation on whistleblowing is expected to be enacted in the coming months by Public Service Reform Minister Brendan Howlin.

ICTU hopes that will give greater clarity on the rights of and expectations upon ordinary workers.