Whistleblower 'let down and disappointed' with new protected disclosure legislation

'Overall, I’m feeling a bit let down and disappointed. Really, the new act is about future whistleblowers,' former prison guard turned whistleblower Noel McGree said about new legislation to protect those who make disclosures. Picture: Moya Nolan

New whistleblower legislation will not protect many who have already made protected disclosures, a former prison guard turned whistleblower said.

Noel McGree, who made a number of protected disclosures about alleged wrongdoing in different facets of the Irish Prison Service in March 2016, said although he was thanked by the president and Public Expenditure Minister Michael McGrath for his input to the new Protected Disclosures (Amendment) Act 2022, signed into law by Michael D Higgins on Thursday, the new law will not benefit him.

Although the new act can be applied retrospectively, it may not apply to those who have already commenced legal proceedings, which Mr McGree already has.

And as someone has just six months to lodge a complaint with the Workplace Relations Commission, Mr McGree questioned how retrospective the act could ever really be.

Although a case he lodged with the High Court will not be heard until 2024 at the earliest, because it was filed before the new legislation was enacted, it will be tried under old whistleblower legislation.

“Overall, I’m feeling a bit let down and disappointed. Really, the new act is about future whistleblowers," he said.

But the protected disclosures act has got some things right, he said. One of these is reversing the burden of proof in civil proceedings so penalisation of the whistleblower is assumed until an employer shows otherwise.

“The reversal of the burden of proof is certainly positive but that only kicks in when a case gets to court. At that stage, you’ve already been penalised, lost your job, suffered. It does not prevent that penalisation,” he said.

A new position of protected disclosures commissioner will be established in the Office of the Ombudsman under the new legislation.

Mr McGree broadly welcomes this development that one office with relevant expertise will now handle all protected disclosures.

The new law was required to transpose the EU whistleblower directive 2019/1937 on the protection of persons who report breaches of union law.

The new act amends the Protected Disclosures Act 2014 and expands its scope to include protections for volunteers, shareholders, board members and job applicants for the first time.

Workers will also be better protected by the expansion of interim relief measures to include acts of retaliation beyond dismissal, and criminal penalties for acts of retaliation.

The act also requires private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures, as is currently the case in the public sector. This will be monitored and enforced by the inspectorate of the Workplace Relations Commission.

“The bill is good in theory but I imagine in practice, it may fail,” Mr McGree said.

Some of the language of the bill is too ambiguous, allowing employers or authorities to potentially manipulate the law and delay proceedings, using terms like “reasonable” and “diligent” when stipulating how promptly complaints must be responded to, he said.

Six years after Mr McGree first made what he believed to be a protected disclosure, his case is still not fully resolved.