Whistleblowers’ rights - Balance not yet struck correctly

The death of Mary Raftery is a reminder of the power of truth to bring about change.

Her work in unlocking the secrets of state and religious institutions forced this country to confront terrible wrongs, try to make amends and build safeguards against further abuses.

One of her achievements was to empower ordinary people to challenge the forces that hurt, controlled and silenced them. Victims, and those who witnessed their suffering but feared to intervene, were finally given the strength to stand up and speak out.

But the hope that this transformation would extend to wider society has not yet been fulfilled. In private companies, it is still a massive gamble for an employee to put their head above the parapet and report wrongdoing.

We have learnt to our cost, through the catastrophic effect of the banking collapse, the danger commercial outfits pose to society when they do their job badly.

We hear anecdotally and retrospectively of the concerns of low and middle-ranking workers who witnessed the mad decision-making of their higher-ups but felt helpless to challenge it.

One of the reasons cited for this feeling of powerlessness was the lack of protection for those who dared to shout stop. Take on the boss and you can take on the dole queue was the rule of thumb that ensured people kept their heads down and their mouths closed.

But comprehensive whistleblower legislation, long promised before the economic collapse and long regretted since, is still not in place.

Sections of the Criminal Justice Act 2011, introduced last year, were meant to address the issue, but trade union leaders have now pointed to serious weaknesses.

The new legislation makes it a crime for an employer to penalise an employee for whistleblowing, regardless of the damage done to personal career or corporate reputation. So far so good.

But it has also created a new offence of failing to report corporate crime while at the same time making it illegal to make a false report or be reckless as to the veracity of an allegation.

So what are the choices for an employee who has suspicions of wrongdoing, but perhaps not the definitive evidence or analytical expertise to be certain of it?

Risk criminal prosecution for wrongly accusing someone or risk criminal prosecution for failing to make the accusation? Neither is an attractive option and neither does much to encourage the new era of transparency that is badly needed.

The Government has said it will work to create whistleblower legislation that will be all-encompassing in terms of the sectors it covers, and that will strike the right balance between protecting those who speak up with good intentions and those who might be unfairly damaged by a malicious or inaccurate report.