EMPLOYMENT CASE LAW / Human Resource Management: Protected Disclosures (Whistleblowing) PolicY
The importance for Organisations of having a detailed and robust whistleblowing policy in place cannot be underestimated. The Protected Disclosures Act was introduced in July 2014, providing comprehensive protection to whistle-blowers. There is a significant amount of detail in the Protected Disclosures Act, and a number of definitions and phrases used which Employers should be aware of either in implementing an Organisational policy or dealing with a protected disclosure raised.
Under the Act, a Protected Disclosure refers to where a Worker raises a concern in relation to a specific relevant wrongdoing, such as fraud, crime, danger, or failure to comply with any legal obligation which came to the Workers attention in connection with the Workers employment. The Act provides protection to workers in all sectors of employment, including both the public and private sector. The term “Worker” extends to cover not only Employees, but also Contractors, Consultants, Agency Employees, Trainees and those carrying out internships.
An effective whistleblowing policy should ensure the Organisation is fully compliant with legal requirements, outlining the steps a Worker should take in bringing a concern forward. This can include setting out the appropriate person a Worker can raise concerns with in the first instance, internally and in confidence. However, should the Worker feel that it is not appropriate or feel uncomfortable disclosing such information to this person, the Worker should be enabled and encouraged to raise any concern(s) to a more Senior Manager or a Protected Disclosure Officer for example and confirm that a Protected Disclosure is being made in accordance with an internal policy. Whilst there is no requirement that Workers initially disclose any concerns to the Employer, it may be preferable from an Employer perspective that they do so, in order to seek to understand, resolve and / or investigate the concerns if necessary, rather than a concern being raised externally or not at all.
Although a Worker is not expected to prove the truth of the facts in a disclosure, they must have a ‘reasonable belief’ that there are grounds for the concern when making a disclosure. A reasonable belief means that their belief is based on reasonable grounds. Reassurance should also be provided that a Worker can bring forward a claim without fear of penalisation, discrimination or less favourable treatment.
In the event of a disclosure being made, it should state for example:
Following receipt of a disclosure the Organisational response is important. In the event of a concern being raised, the Organisation should arrange a meeting with the Worker to discuss the matter on a strictly confidential basis. The meeting should be conducted by an independent member of Management or external assistance may be necessary in some circumstances so as to ensure impartiality, objectivity and fairness.
Organisations should also note in their policy that following the receipt of a disclosure, that should it turn out to be unfounded, that the person/persons who disclosed the information will not be subjected to any further action and are protected from victimisation, discrimination and any other less favourable action. However where a disclosure is found to be made maliciously, it should be stated that disciplinary action may be taken by the Organisation.
Employers should be mindful that the Protected Disclosures Act provides that an Employee who is penalised by dismissal following the making of a protected disclosure may claim that he/she has been unfairly dismissed. There are extensive protections set out in the Unfair Dismissals Acts for protection against unfair dismissals. There is no minimum service requirement to avail of the Unfair Dismissal Acts arising from making a protected disclosure. Compensation for unfair dismissal on grounds of making a protected disclosure can be up to a maximum of 5 years remuneration. Furthermore, where an Employee is dismissed on foot of having made a protected disclosure, protection in the form of “interim relief” on application to the Circuit Court is available to prevent an unfair dismissal proceeding in advance of an outcome being determined.
The Protected Disclosures legislation remains relatively new. It will be interesting to see how case law in this area progresses over the next number of years as this area of Employment Law grows and develops.
In order to encourage and enable Workers to raise concerns in the right manner and enable an Organisation to address such concerns as they arise, a clearly defined and comprehensive policy outlining the requirements that Workers need to meet in order to make a protected disclosure, the procedures for raising a concerns and how the Organisation will deal with a concern, whilst providing safeguards and protection is essential for Employers.
Under the Act, a Protected Disclosure refers to where a Worker raises a concern in relation to a specific relevant wrongdoing, such as fraud, crime, danger, or failure to comply with any legal obligation which came to the Workers attention in connection with the Workers employment. The Act provides protection to workers in all sectors of employment, including both the public and private sector. The term “Worker” extends to cover not only Employees, but also Contractors, Consultants, Agency Employees, Trainees and those carrying out internships.
An effective whistleblowing policy should ensure the Organisation is fully compliant with legal requirements, outlining the steps a Worker should take in bringing a concern forward. This can include setting out the appropriate person a Worker can raise concerns with in the first instance, internally and in confidence. However, should the Worker feel that it is not appropriate or feel uncomfortable disclosing such information to this person, the Worker should be enabled and encouraged to raise any concern(s) to a more Senior Manager or a Protected Disclosure Officer for example and confirm that a Protected Disclosure is being made in accordance with an internal policy. Whilst there is no requirement that Workers initially disclose any concerns to the Employer, it may be preferable from an Employer perspective that they do so, in order to seek to understand, resolve and / or investigate the concerns if necessary, rather than a concern being raised externally or not at all.
Although a Worker is not expected to prove the truth of the facts in a disclosure, they must have a ‘reasonable belief’ that there are grounds for the concern when making a disclosure. A reasonable belief means that their belief is based on reasonable grounds. Reassurance should also be provided that a Worker can bring forward a claim without fear of penalisation, discrimination or less favourable treatment.
In the event of a disclosure being made, it should state for example:
- That the disclosure is being made under this procedure;
- The discloser’s name, position in the Organisation;
- The name of the person(s), body or otherwise alleged involved;
- A description of the ‘relevant wrongdoing’;
- Information in respect of the alleged wrongdoing – what is occurring / has occurred, and how including dates/times and locations so as to assist the investigation of the matters raised in the disclosure.
Following receipt of a disclosure the Organisational response is important. In the event of a concern being raised, the Organisation should arrange a meeting with the Worker to discuss the matter on a strictly confidential basis. The meeting should be conducted by an independent member of Management or external assistance may be necessary in some circumstances so as to ensure impartiality, objectivity and fairness.
Organisations should also note in their policy that following the receipt of a disclosure, that should it turn out to be unfounded, that the person/persons who disclosed the information will not be subjected to any further action and are protected from victimisation, discrimination and any other less favourable action. However where a disclosure is found to be made maliciously, it should be stated that disciplinary action may be taken by the Organisation.
Employers should be mindful that the Protected Disclosures Act provides that an Employee who is penalised by dismissal following the making of a protected disclosure may claim that he/she has been unfairly dismissed. There are extensive protections set out in the Unfair Dismissals Acts for protection against unfair dismissals. There is no minimum service requirement to avail of the Unfair Dismissal Acts arising from making a protected disclosure. Compensation for unfair dismissal on grounds of making a protected disclosure can be up to a maximum of 5 years remuneration. Furthermore, where an Employee is dismissed on foot of having made a protected disclosure, protection in the form of “interim relief” on application to the Circuit Court is available to prevent an unfair dismissal proceeding in advance of an outcome being determined.
The Protected Disclosures legislation remains relatively new. It will be interesting to see how case law in this area progresses over the next number of years as this area of Employment Law grows and develops.
In order to encourage and enable Workers to raise concerns in the right manner and enable an Organisation to address such concerns as they arise, a clearly defined and comprehensive policy outlining the requirements that Workers need to meet in order to make a protected disclosure, the procedures for raising a concerns and how the Organisation will deal with a concern, whilst providing safeguards and protection is essential for Employers.
