Whistleblowing: What you need to know

Sunday, 28 February 2016

In a week that has marked the commencement of what has been termed Ireland’s first “Disclosures Tribunal”, this is a very topical area of law that any HR or compliance professional, or in house counsel, whether in the public or private sector, needs to be on top of. This update deals with recent whistleblowing case law, the main legal concerns arising in practice from our experience in the area, likely developments in 2017 and how an employer should reduce risk.

What is the Protected Disclosures Act?
The Protected Disclosures Act 2014 contains the main protections for whistle blowers in Ireland. The purpose of the 2014 Act is to protect a worker who makes a disclosure of information which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings and is disclosed in the manner prescribed in the Act. The concept of wrongdoing under the Act is quite broad and includes an offence, a failure to comply with a legal obligation, health or safety or environmental concerns and unlawful or otherwise improper use of resources of a public body or of public money. The list of people a worker can disclose to include the worker’s employer, a legal representative, certain prescribed (mostly regulatory) bodies and, for public servants, a relevant Minister.  The Act applies to all employers in the public and private sector.

You can click on the following links for ByrneWallace updates from July 2014 and October 2014 containing further information on the provisions of the Act.

Is there additional statutory Guidance available?
Since the introduction of the Act, the Workplace Relations Commission (WRC) has published a Code of Practice to provide guidance on the provisions of the Act and the Department of Public Expenditure and Reform (DPER) has also published a Guidance document specifically for public bodies. ByrneWallace worked closely with DPER on that Guidance document.

Case law developments over the last 12 months
In recent months, there has been a considerable increase in the number of reported cases under the 2014 Act. The Act allows for an employee to lodge an interim relief application seeking an order from the Circuit Court to put the employee back in work while the employee awaits the hearing of an unfair dismissal claim before the WRC. It is difficult to determine exact numbers for such applications as the Circuit Court will often determine cases without issuing written judgments. Recent applications over the last few months include: Dougan and Clark v Lifeline Ambulances (July 2016); Catherine Kelly v AlienVault Ireland Ltd and AlienVault Inc (Circuit judgment issued in November 2016 and the case has been appealed) and Jacquie Campbell v St Andrew’s College Junior School (also November 2016).

There have also been a number of recent judgments dealing with penalisation. This involves an application to the WRC where a worker alleges that he or she has been subjected to a detriment for making a protected disclosure. Recent examples include Carr v Donegal County Council (June 2016); McGrath Partnership v Monaghan (September 2016) and Employee v Authorised Insurance Company (October 2016). The last case involved an insurance practitioner in an authorised insurance company regulated by the Central Bank, who allegedly raised certain regulatory concerns and claimed penalisation as a result. The insurance practitioner was unable to prove that she made the disclosures claimed. An important factor taken into account was the insurance practitioner’s failure to follow the policy in place in the company. The case highlights the importance of a written policy and awareness of that policy.

Please click here to access a ByrneWallace case note on that decision.

The combination of a growing body of case law and publicity around recent whistle blowing controversies is likely to result in further disclosures and potential legal claims in 2017. However, we note that in the Campbell case the President of the Circuit Court expressed a concern in respect of the resources available at Circuit Court level to afford an urgent hearing in interim relief applications which could affect how such cases are dealt with.

Main legal issues arising in practice
ByrneWallace has been at the forefront of advising on the 2014 Act, working with Government departments and public and private sector bodies dealing with the application of the Act. At this stage, most of our clients have some form of whistleblowing policy in place but we are finding that many clients, particularly in the private sector, have older policies that do not comply with the provisions of the 2014 Act. For example, older policies may not provide for the obligation to protect the identity of the discloser (as provided for in section 16 of the Act), the protection from penalisation (which is defined very broadly in the Act) and the key concept of a reasonable belief (which is a new concept and relevant to any investigation in respect of a disclosure).

Failure to ensure compliance with the 2014 Act increases risk for employers and this is an issue that many employers will need to address in 2017. If they do not, they will run into unnecessary complications when faced with the difficult task of assessing and investigating a disclosure. Some clients also have policies that are based on previous sectoral whistleblowing protections, which are difficult to marry with the provisions of the 2014 Act. Ensuring that all obligations are reflected in any policy is a particular challenge for those clients.

ByrneWallace is a leading advisor to the public sector and we have provided numerous public bodies with tailored public sector specific training for disclosure recipients. This has included Government departments and offices, other large public sector bodies and a number of regulators. The DPER Guidance document (referenced above) recommends that all public bodies provide such training and we expect that further public sector clients and contacts will roll out training programmes in 2017. While the appetite for training has so far existed mainly in the public sector, the vast majority of cases before the WRC Adjudicators and the Courts involve private sector employers, so it may be a case of the private sector catching up with the public sector in this area by investing in similar training this year.

Our training has focussed to a large extent on the demanding task of assessing and investigating protected disclosures and we have also worked with many clients providing practical advice on how to assess and investigate individual cases. Particularly challenging are the cases where a worker raises multiple concerns, some that could potentially fall under the category of information that tends to show a relevant wrongdoing (and could therefore fall within the ambit of the 2014 Act and any related policy) and other concerns that are in the form of personal grievances (which would normally be dealt with under a dignity at work or grievance policy). Such cases are difficult to deal with as the issues may involve multiple respondents and multiple policies, and may also involve concerns raised by the worker with a parent department or regulator. However, they appear to be relatively common in practice.

Employer clients are also grappling with the protection of identity provisions contained in section 16 of the 2014 Act (referenced above) and how such protections should be managed in practice. A particular pressure point is the requirement to balance the section 16 rights of a discloser against any potential natural justice rights of a respondent (for example, the potential right to know the identity of an accuser and challenge that accuser).

These and related issues are likely to continue to provide practical challenges for employers in 2017. However, we will all have an opportunity to have our say on what has proved to be a ground breaking, and somewhat controversial, piece of legislation later this year, as the Act is due to be reviewed on the third anniversary of its commencement.

Reducing risk
An employer should ensure that:

• it has an appropriately drafted policy in place taking into account the provisions of the 2014 Act and best practice in this area and that policy also ties in with the other policies within the organisation (for example, grievance, dignity at work and disciplinary);
  


• all workers are provided with a copy of that policy or made aware of its existence and that this can be proved should it be necessary to do so in any future claim; 
  


• any disclosure recipient named in that policy is provided with training in the area so that they will know how to deal appropriately with any disclosure received; and


• if a disclosure is received, legal advice should be sought at an early stage so that the peculiarities of the 2014 Act can be taken into account in any assessment or investigation while ensuring that natural justice (and other related) rights are also respected.

Please click here for a synopsis of our recent work in the area.

If you would like to discuss any of the cases or issues mentioned above, or any of the related services provided by ByrneWallace, please contact Emmet Whelan, Michelle Ní Longáin or a member of the ByrneWallace Employment Law team.