Introduction

The Irish example shows how whistleblowing legislation is somewhat effective in regard to the whistleblowing experience, however it is limited in its ability to effect cultural change. By comparing the impact of Ireland’s previous weak and its current strong legislation, this essay suggests that legislation can have a positive effect in regard to the experience of the whistle-blower, however even with strong legislation, cultural effects inhibit whistleblowing from fully preventing corruption. Ireland is an appropriate country to examine the effectiveness of legislation because it offers a neat comparison between minimal legislation and strong legislation. This allows us to see what impact legislation has, and thus draw conclusions as to how effective it can be. The first part of this essay looks
at the act of whistleblowing itself. This section highlights how the typical whistle-blower experience and cultural constraints can severely limit its enactment. It then goes on to discuss the aims of legislation. The second section examines what impact the sectoral approach to whistleblowing had on both the experience of the whistle-blower and the cultural environment in Ireland. The next section then compares this to the impact of the Protected Disclosures Act (PDA) 2014. The essay concludes that the more efficient PDA has resulted in a more positive experience for the whistle-blower, however this piece of legislation is limited in its ability to reverse a culture of silence.

Whistle-blowing and the aims of legislation

Whistle-blowers are highly valuable to an organisation and society in general, however due to the risks involved in blowing the whistle and an unfavorable cultural environment, their benefits are not frequently reaped. Whistle-blowing is understood as an individual within an organisation, drawing attention to an act of illegality, immorality or illegitimacy, to an individual that may be able to respond effectively (Transparency International, 2010) (Near & Miceli, 1995) (Flynn, et al., 2019). Whistle-blowers are inherent to the fight against corruption. As corruption tends to take place in secret, those involved or their colleagues, may be one of few individuals aware of what is going on. For this reason, an individual who witnesses corruption in the workplace, and reports it to a person who is capable of investigating such claims, is crucial for breaking this corruption cycle (Transparency International, 2010) (Schultz & Harutyunyan, 2015). Whistle-blowing is also important for ensuring the principles of liberal democracy (Mansbach, 2011). Whistle-blowers allow the public to gain a more accurate understanding of what is going on within state and private bodies, this allows them to react and put pressure on these bodies to undo their wrongdoings and proceed with business in a more ethical manner (Mansbach, 2011) (Flynn, et al., 2019).

Although whistle-blowers bring an abundance of benefits to society, they are taking great risks by reporting wrongdoing within the workplace (Transparency International, 2010). The Soeken model of the typical whistle-blowing experience highlights how much harm whistle-blowing can cause (Bjorkelo, et al., 2008). This model distinguishes between the various phases of the typical whistle-blowing process. The first involves the ‘discovery’ of the wrongdoing. This is shortly followed by the second phase of reflection, wherein the individual considers reporting the malpractice (Bjorkelo, et al., 2008). Thirdly, the whistle-blower will confront the problem by blowing the whistle. This is followed by a phase of ‘retaliation’ by employers or colleagues in the form of bullying or possible job loss (Bjorkelo, et al., 2008). The fourth phase is labelled ‘the long haul’ as it involves prolonged waiting. Within this phase, the whistle-blower typically struggles mentally, particularly if they are experiencing financial problems due to the loss of their employment (Bjorkelo, et al., 2008). The fifth phase of ‘closure’ comes as a result of a final decision being made in the case. ‘Resolution’ is the last phase which is the whistle-blower returning to normality and feeling restored. Some may never reach this phase due to the immense suffering they experienced during the whistle-blowing process (Bjorkelo, et al., 2008). The Soeken model highlights how burdensome the whistle-blowing process can be. Most people are aware of the challenges that come with blowing the whistle and therefore refrain from doing so.

Another factor that inhibits the virtues of whistle-blowing, is a culture of silence. A culture of silence can occur in a specific workplace based on organizational culture, or it can be related to societal attitudes towards whistle-blowing based on national culture. A culture of silence in regard to malpractice, appears in organisations when employees do not feel welcome to disclose wrongdoings they have witnessed (Kaptein, 2011). A wider societal, silent response to wrongdoings can occur because of attitudes to whistle blowers that have been present in a specific country for a significant period of time (Patel, 2003) Whistleblowing in Ireland has historically been seen as an act of deceit. This is partly due to its past as a colonial subject. During Colonial rule, a native informer was giving information to British authorities that they would then use to further their control (Transparency International, 2010). Therefore, anyone who was seen to be taking part in this act, was ostracised amongst the native population and was thus labelled a ‘traitor’ (Transparency International, 2010, p. 5) (Kierans, 2019). This cultural environment continued into post-colonial society, seen through the prominence of clientele networks that promoted loyalty rather than reporting concerns (Transparency International, 2010). Anyone who blew the whistle was risking their social status. They would have been going directly against the culture at the time and placing themselves in a vulnerable position vis-a-vis their colleagues and society in general. This of course has limited the occurrence of whis tle-blowing (Transparency International, 2010)

Appropriate legislation is often seen as a cure to the negative experiences of whistle-blowers and as a mechanism to promote cultural change (Transparency International, 2010). Transparency International (TI) has put together a guide which allows states to implement whistleblowing legislation that protects the whistle-blower and allows for this shift in culture (Transparency International, 2010). The recommendations proposed in the guide are as follows. Firstly, whistleblowing legislature must be a “single comprehensive legal framework” (Transparency International, 2010, p. 3), it should be clear and comprehensible, cover the public, private and not for profit realm and ensure reliable channels to report concerns (Transparency International, 2010, pp. 3-4). Secondly, the framework should protect the safety of whistle-blowers. This includes all employees, including those outside the typical employee-employer relationship, such as volunteers and consultants. It also calls for the protection of family members and close friends of the whistle blower (Transparency International, 2010, p. 4). The third recommendation is that there should be protected internal and external channels through which an individual can disclose information (Transparency International, 2010, pp. 4-5). Lastly, the guide suggests that in order for whistleblowing legislature to be efficient, it must be strictly enforced (Transparency International, 2010, pp. 5-6).

Sectoral approach to whistle-blowing

Prior to the Protected Disclosure Act of 2014, whistle-blowing legislation was minimal at best. Due to a series of corruption scandals in the late 90s, a whistleblowing bill was proposed. After several years, this bill was dropped due to excessive complexity, and a sectoral approach to whistleblowing was adopted instead (Transparency International, 2010). A sectoral approach involves passing legislation on a sectoral basis, meaning only selected bodies have whistleblowing protection (Transparency International, 2010) (Kierans, 2013). This sectoral approach was not in line with transparency international’s guidelines on an ideal whistleblowing legal framework. Firstly, the sectoral approach required a separate act for each individual body, meaning that it is not a “single comprehensive legal framework” (Transparency International, 2010, p. 3) (Transparency International, 2010). It does not offer protection to all employees, only those in selected organisations who were employed in a typical employee-employer relationship (Transparency International, 2010). Furthermore, there is no protection for family members or those associated with the whistle-blower (Transparency International, 2010). External channels to report wrongdoing are offered to the selected bodies, whilst internal
channels are only offered in private companies, rather than state bodies (Transparency International, 2010). This adoption of legislation, had a significantly negative impact on the experience of whistle-blowers and did not reverse the culture of silence.

The whistle-blowing experience and the culture of silence under sectoral legislation

The conditions of the Irish legislation on whistleblowing led to many cases of whistle-blowing that resulted in serious harm to the whistle-blower. Without proper legislation in place that protects the whistle-blower, those who make a disclosure are often unfairly treated and suffer immensely as a result. One of the most widely known cases of whistleblowing in Ireland, prior to the PDA 2014, is the Sgt McCabe story (Irish Examiner, 2017). In 2012, Sgt McCabe became a high-profile whistle-blower due to his allegations of malpractice within the Garda Siochana (Irish Examiner, 2017). McCabe suffered for over a decade with bullying in the workplace and sexual assault allegations, as a result of his disclosures (O’Higgins, 2016). He suffered every low that can be seen in the Soeken model (Bjorkelo, et al., 2008). McCabe and his family underwent severe maltreatment as a consequence of blowing the whistle. This was prolonged due to inefficiencies in the legislation which moved responsibilities between divisions and individuals, thus withholding thorough investigation (O’Higgins, 2016). McCabe’s case demonstrates how weak legislation can enhance the suffering of the whistle-blower.

The sectoral approach to whistle-blowing did not reverse the culture of silence. The sectoral approach offered little protection or guidance for whistle-blowers in the face of an unfavourable cultural environment (Transparency International, 2010). Therefore, many cases of corruption went unreported due to the fear of being labelled a ‘traitor’. Furthermore, the legislative framework was not incentivising employers to promote whistle-blowing as a tool to prevent corruption in the workplace. Therefore, the workplace culture mirrored society in general and was not supportive of those who reported concerns (Moore & McAuliffe , 2010). This period saw the occurrence of multiple cases of corruption that could have been prevented, had there been a supportive cultural environment for whistleblowing. In a study conducted in Ireland on nurse’s attitudes to whistleblowing, it was found that forty percent of nurses who witnessed malpractice in regard to patient treatment and managerial relations did not report it (Moore & McAuliffe , 2010). When asked why they did not report, the feeling that they would not be listened to was amongst the most common responses (Moore & McAuliffe , 2010). In another report on whistleblowing in the HSE, nurses noted a culture of blame and scapegoating in the workplace (Transparency International, 2017). This example shows how the culture of silence was present during the sectoral approach to whistleblowing.

The Protected Disclosure Act 2014

The government responded to the abundance of inefficiencies of the sectoral approach with the Protected Disclosure Act 2014. This act aimed to enforce better protection of whistle-blowers and promote a shift in the cultural response and perceptions of whistle-blowing (Kierans, 2019). The act aimed to reflect the guidance of Transparency international, but also go beyond the provisions of existing frameworks to establish an exemplary piece of legislation (Kierans, 2019). The Act is a single, comprehensive piece of legislation that concerns ‘workers’, rather than employees engaged in a typical employee-employer relationship (Halpin & Dundon, 2017). It provides a ‘stepped’ disclosure mechanism, wherein employees are first to report internally, yet external channels are available in case of an internal failure, or the disclosure is more appropriate for external reporting (Kierans, 2019). There are also certain provisions within the act that address whistle-blowers that received significant retaliation. This includes compensation and access to court to redress unfair dismissal (Halpin & Dundon, 2017). Another important element of the act is that the motive of the whistle-blower is irrelevant when reporting their complaint (Halpin & Dundon, 2017). In a press release on behalf of TI, john Devitt, Chief Executive of TI Ireland, stated that TI supports the new Act and said that is a “very important step in providing whistle-blowers with the protection they deserve” (Transparency International , 2014). The high standard of this legislation suggests its impact on the whistleblowing experience and culture would be significant. However, although it did positively improve the experience of the whistle-blower, many of the cultural restraints present in the sectoral phase can still be seen.

Impact of the PDA 2014 on the whistle-blowing experience and the culture of silence

The PDA 2014 has resulted in the experience of whistle-blowers being less damaging to their personal and professional life than those who blew the whistle before this Act. Although many of the phases of the Soeken model are still present in the cases of whistle-blower’s post PDA 2014, they are somewhat prevented from experiencing the extreme lows that this model presents (Bjorkelo, et al., 2008). This can be seen in one of the first cases of unfair dismissal brought before the court prior to the enactment of the PDA. This is the case of Dougan and Clarke vs Lifeline Ambulance Services. Dougan and Clarke made a protected disclosure against their employers, a short while later they were made redundant (O’neill, 2016). They brought their case before the court and claimed that they had been dismissed based solely on their reporting of malpractice within the workplace (O’neill, 2016). Although the courts did not decide that they were dismissed solely based on their disclosure, the courts did decide that it was possible that their whistle-blowing caused their dismissal (O’neill, 2016). Therefore, the court ordered that Lifeline ambulances were to pay the two individuals their previous salaries for the duration of the investigation (Transparency International, 2017). The provision within the PDA 2014 that allows employers to go to court based on a perceived unfair dismissal as a result of their disclosure (Halpin & Dundon, 2017), in part reduces the suffering experienced in the Soeken model. Employers are unlikely to dismiss an employee, based on their decision to blow the whistle, if they will have to financially reimburse them. Therefore, the retaliation phase is less detrimental to one’s career prospects. Furthermore, the whistle-blower does not experience so much financial difficulties in the ‘long haul’ phase (O’neill, 2016) (Transparency International, 2017).

The PDA 2014 has had a limited impact on cultural perceptions of whistleblowing. Some positive attitudinal changes can be seen since the enactment of the PDA, such as 95% of respondents to the integrity at work survey believing that it is in the best interest of an organisation for internal complaints to be made about malpractice (Transparency International, 2017, p. 39). However, when employers were asked what words they associated most strongly with the term whistle-blower, ‘rat’ or ‘snitch’ were amongst the most commonly cited (Transparency International, 2017, p. 41). Furthermore, the PDA has seemed to have little impact on the culture of loyalty over internal reporting. Only 64% percent of respondents supported whistleblowing that may damage the reputation of the
sector or organisation (Transparency International, 2017, p. 39). These results show that even efficient legislation is unable to reverse certain cultural restraints to whistleblowing. Furthermore, since the enactment of the PDA, corruption scandals have been brought to light which may not have occurred had the PDA been able to reverse the culture of silence. One such example is the cervical cancer scandal, wherein women were told that their tests came back clear when they were in fact not (Kingston, 2019). When this was discovered within the Health Services Executive, in order the save the reputation of the Health sector, the women were still not informed of the errors (Kingston, 2019). This consideration of reputation over the public good is precisely what whistle-blowing legislation aims to eradicate. However, the occurrence of this crisis shows how this legislation has not been able the reverse this cultural concern. Since the PDA is still in its infancy, it remains to be seen if it will influence culture in some way, however these statistics and events do not offer much hope.

Conclusion

This essay has argued that legislation is effective in improving the whistleblowing experience, however it has a limited impact on culture. Through the Irish example, a comparison was drawn between weak and strong legislation in order the gauge the effectiveness of legislation. The weak legislation brought a negative impact to the whistleblowing experience and was unable to impact culture. Whilst the strong legislature was able to positively impact the experience of the whistle-blower, it was also unable to unable to impact culture. This suggests that more than legislation is needed to break a culture of silence.

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