Protection of whistleblowers - especially vulnerable whistleblowers

Whistleblower Private Members’ Motion Speech (Edited)

29.6.11

This motion is aimed at highlighting the current plight of whistleblowers in Ireland, the cost to Irish society of not protecting whistleblowers, and the very simple measures that must be introduced to protect them as a matter of urgency.

This debate is particularly timely now, given the allegations coming from Rostrevor House nursing home and how allegations that workers at the home were treated after blowing the whistle there. However this issue has always been deserving of our attention.

For decades, we have heard about the devastating consequences of cover ups, abuse and corruption in Ireland. From the sexual and physical abuse of children graphically recounted in the Murphy report, to the abuse and maltreatment of former patients at our Lady of Lourdes hospital in Drogheda; from the scandal of the Hospital Sweep Stakes competition to the economic catastrophe wrought on this country through wrongdoing in our banks – we have learned that silence is not always golden.

We have also heard of the plight of those who have chosen not to remain silent. We have learned how whistleblowers like Eugene McErlean former head of audit at Allied Irish Banks or Noel Wardick at the Irish Red Cross have been ignored and lost their jobs for reporting concerns in good faith. The story of Bernadette Sullivan at Our Lady of Lourdes shows how whistleblowers are often ostracised and isolated for having reported on ‘one of their own’.

The latest accounts of alleged abuse at Rostrevor House show how the most vulnerable in society are exposed to and will always be at risk of cruelty and neglect. Fourteen staff have been made redundant because of the closure of the nursing home in Rathgar. Two of the whistleblowers were dismissed. We have found to the cost of both the whistleblower and the victims of wrongdoing, that the abuse continues to happen and will always happen so long as we ignore the need to protect those who speak out. We will find that the abuse will continue so long we fail to punish those who silence workers attempting to tell the truth. Unfortunately when the Rostrevor workers all lost their jobs, the message sent out to workers was that, if you report abuse, you and other innocent colleagues will lose your jobs, your professional reputation may be ruined, and you will not receive support from either HIQA or the HSE.

Unlike the UK with its Public Interest Disclosure Act 1999 and New Zealand with its Protected Disclosures Act 2000, Ireland does not have an overarching whistleblower protection law. After a series of political corruption scandals a bill proposing one was tabled in 1999 by the Labour Party. However it languished on the Government programme for seven years before being dropped because, according to the then Minister of State at the Department of Enterprise, Trade and Employment, Deputy Killeen, “A single all-encompassing legislative proposal on ‘whistleblowing’ would be complex and cumbersome, take considerable time to enact and would not be user friendly to the general public.” These complexities were never fully explained by the Government. Neither did they explain how a single, comprehensive and overarching Act could be less user-friendly than a piecemeal, incoherent and scattered legislative approach. Instead they chose to introduce legislation on a ‘sectoral’ basis, a process begun in 1998 and becoming official policy in 2006, and an approach which only protects employees in some professions and sectors. It leaves employees and other potential whistleblowers in some sectors with little if any legal protection.

Shockingly, there is no statutory protection for whistleblowers in financial services, company law nor in relation to the civil service. Particularly important from the point of view of this motion, those pertaining to nursing home and medical malpractice lag behind other whistleblower provisions in Irish law. This point was sharply borne out by a recent study undertaken by TCD’s Centre for Health Policy and Management. Findings from the study revealed that 88% of nursing staff respondents from Irish hospitals had observed an incident of poor care in the past six months.  The findings indicated that 70% of those that observed an incident of poor care went on to report it; however, only one in four nurses who reported poor care were satisfied with the way the organisation handled their concerns.  

Whistleblowing in the healthcare setting is extremely important. For instance, the UK based Public Concern at Work organisation notes that over the last decade public safety (including patient safety in healthcare) consistently ranks in the top five types of concern reported to their helpline.

The international evidence clearly shows the value of whistleblowing. More than one in four cases of corruption and fraud are disclosed by whistleblowers. Many cases of sexual abuse and wrongdoing at work are uncovered by whistleblowers. The financial benefits alone are worthy of note: the US Department of Justice has claimed that whistleblowers have saved the American tax payer US$21 billion since the mid-1980s.

Our counterparts in the United Kingdom, New Zealand, Australia and South Africa introduced comprehensive safeguards for whistleblowers a long time ago. In the UK, these protections have been used effectively and without legal mishap to foster a culture where speaking up is much more the norm than is the case in Ireland. Indeed most Common Law jurisdictions have recognised the importance of flexible, comprehensive laws in preventing corruption, fraud, waste of public resources, discrimination and sexual abuse.

Our current sectoral approach allows only for narrowly defined categories of workers to report very narrowly defined categories of offences. Workers in our financial services, agency staff in our hospitals and private health care providers, airline pilots and those reporting violations of company law are all exposed to retaliation by their employers. This uneven standard of protection creates uncertainty in the mind of the person reporting wrongdoing at work. Such doubt can only have a chilling effect on the prospective witness or whistleblower and will continue to pose a barrier to the development of a culture of transparency in Ireland. 

We must guard against complacency on this matter. Any old overarching law in this area is not enough. While the introduction of generic Private Members’ Bills on whistleblower protection in 2010 and this year was indeed welcome (and particular credit must again go to the Labour party), these Bills are still not without their flaws.  The protection offered therein is still too narrow and does not cover persons falling outside the traditional employer/employee relationship. In particular migrant workers, such as those involved in the Rostrevor case, and who comprise 16% of workers in the health and home care sector, would not be protected by the enactment of the Labour and, now, the Technical Group Bill as it currently stands. This has potentially very serious repercussions for a group of people whose vulnerability is heightened due to their limited employment and residency rights. Non executive directors, contractors and consultants too fall outside the traditional model and thus fall not to be protected under this proposed legislation. Another lacuna is that the Bill does not propose criminal sanctions against those who attempt to cover up a report that may be made by a whistleblower to the authorities or retaliate against a whistleblower reporting concerns about criminal wrongdoing.

It is also worth mentioning that compensation for workers found to have been victims of whistleblower retaliation should be proportionate to the impact of the retaliation. The current provision of two year’s salary under the Unfair Dismissals Act does not go nearly far enough to compensate many of those whistleblowers who have often lost everything. The Safety Health and Welfare at Work Act 2005 and Employment Permits Act 2006 already offer whistleblower compensation that is deemed to be just and equitable in the circumstances and these provisions could easily be provided for in new legislation.  

Given all we have learned about wrongdoing in all sectors of society and the economy, it is time we introduced a whistleblower law that a law that would protect every worker – irrespective of their nationality or employment status - who honestly reports a concern about wrongdoing, waste and other risks to the public good. It is time we introduced a law that challenges the culture of secrecy and impunity: a law that shows we have learned from the mistakes which have cost this nation and its people so dearly.