THE intended purpose of the proposed Whistleblower Legislation (properly called the Protected Disclosures Act), which is currently being debated by a Joint Select Committee of the Houses of Parliament are: (a) encouraging the making of disclosures of improper conduct; (b) protecting employees who make such disclosures from being subjected to adverse consequences in the work place; and (c) addressing how such disclosures are received, investigated and otherwise dealt with.

This legislation is primarily aimed at protecting the employee from persons at the workplace. The definition of “employee” in this context is very broad. It makes no distinction as to whether the person is in the strict legal sense an “employee” or an independent contractor. It even extends to persons who simply assist or have assisted in the carrying on or conduct of the business regardless of whether or not they are being paid for such assistance. Although the definition is broad, we can understand the reasoning behind its breadth. It is intended to capture anyone who may likely come into possession of such information.

Not all disclosures will be deemed to be protected. To be protected the disclosure must relate to particular kinds of matters showing improper conduct within the workplace (such as a criminal offence, conduct likely to threaten the health or safety of a person or likely to damage the environment, showing mismanagement, impropriety or misconduct, victimisation or unfair discrimination). The disclosure must also have been made in good faith and to the proper person. The legislation seems to require the employee to first report the matter internally unless it involves serious misconduct that justifies going first to an external person. Although the legislation acknowledges that a disclosure to an external person where the employee is fearful of victimisation if they disclose internally, qualifies for protection, it is surprising to see that the legislation nevertheless seems to require the employee even in such an instance to first utilise the internal procedure.

How is the making of disclosures encouraged by the legislation?

1. It requires all employers: (a) to establish an internal procedure for receiving, investigating and dealing with the disclosures and (b) to designate a person to receive the disclosures, act on the disclosures and keep the employee updated regarding the investigation of the disclosures.

2. An employee who makes a protected disclosure is protected from any civil, criminal or disciplinary proceeding and is protected from “occupational detriment” arising from the making of the disclosure. For example, it provides that if the employee is dismissed as a consequence of making the disclosure, the employee is deemed to have been unjustifiably dismissed. The challenge for the employee would ordinarily be demonstrating that his dismissal was a consequence of the disclosure and not some other justifiable reason. The legislation therefore presumes that if he suffers the occupational detriment at or about the same time that he makes the protected disclosure, then the detriment was a consequence of that disclosure. It would therefore be for the employer to show that this was not the case.

3. Any provision of an agreement precluding an employee from making a protected disclosure (whether during or after his employment), requiring him to withdraw or abandon any disclosure or proceedings or refrain from instituting any proceedings is rendered void and of no effect. It would seem therefore that a confidentiality agreement would not prohibit an employee from making a disclosure to the appropriate person about improper conduct.

4. The legislation renders it an offence to discourage, prevent, restrain or restrict an employee from making a protected disclosure, intimidate an employee who has made or intends to make a protected disclosure or to induce any person by threats or promises to contravene the Act.

5. The information disclosed and identity of the employee making the disclosure is required to be regarded as secret and confidential.

The disclosure is made, what next?

The legislation, as presently drafted, largely leaves it to the person (the employer in the first instance in most cases) or the external person to establish the procedure for receiving the disclosures. It is our understanding that some consideration is being given to putting in place some minimum procedures. The legislation also contemplates that upon receipt of a disclosure, it will be recorded, investigated and remedied by the person to whom the disclosure was made (though as presently drafted this may not be fully within the power of such persons in all cases). Consideration is being given to the introduction of an oversight body to give guidance and assist with the process of dealing with protected disclosures.

Until an investigation is fully completed, it is required that the employee be updated at least every thirty days regarding the progress of investigations. The legislation does not prescribe any penalties or sanctions for the failure to keep the employee updated. It merely says that if the employer fails to take action within thirty (30) days of making the disclosure the disclosure can be made to an external person. Does this allow the employer or external person to make a half-hearted response and not follow through? It is hoped that provisions will be introduced regarding the oversight body and that this oversight body will be able to ensure that not only will the employee have an entity to which it can turn to ensure that the disclosures are being acted on but the employer or other person will also have a body to which it can turn to confirm that its response to the disclosure has been satisfactory.

The legislation recognises that there may be occasions in which no action is required by the person to whom the disclosure is made (such as where it could more appropriately be dealt with by someone else, it is too frivolous to warrant an investigation or the circumstances have changed). Where the employer decides to refuse to carry out an investigation he is obliged to provide reasons in writing to the employee within fifteen (15) days of the decision. It is hoped that this will also be a matter with which the oversight body will be concerned so that an employee dissatisfied with this response can appeal to such a body. It is also hoped that this requirement to state reasons for refusal will apply not only to employers but also to other persons to whom a disclosure is made. Additionally it is hoped that the requirement that the written reasons for refusing will be given to the employee not within fifteen (15) days of the decision being taken (as now drafted) but within fifteen (15) days of the disclosure being made.

What if there is victimisation?

If an employee believes he has been victimised as a consequence of a protected disclosure then, in addition to it being a criminal offence (for which one could, on conviction be liable to imprisonment and/or fine) the legislation provides that the employee can himself apply to the Supreme Court on a claim against the employer for any appropriate relief or pursue any other process allowed or prescribed by law including, in the case of a claim for unjustifiable dismissal, for reinstatement, a remedy which presently the court does not have the power to award.

The Whistleblower Legislation seems to be an important piece of legislation aimed at encouraging persons to speak up when they see wrongs being committed. We, however, join with those others who have cautioned the legislature to ensure that there is some balance in the statute so that persons are not encouraged to abuse the process by acting in bad faith or maliciously without sanction.

Hilary Reid is a Partner at Myers, Fletcher & Gordon and a member of the Firm’s Commercial Department. Hilary may be contacted at hilary.reid@mfg.com.jm or through www.myersfletcher.com