PAI welcomed guests to Dublin’ Radisson Blu Royal Hotel last Thursday, 29 June, for a conference on a topic that has garnered much media attention of late – whistleblowing and protected disclosures within public organisations.

Speakers on the day were:

  • Labour leader and former Minister for Public expenditure and Reform, Brendan Howlin TD;
  • Head of Central Expenditure Policy Division at the Department of Expenditure and Reform, William Beausang;
  • Partner at Beauchamps, Dermot Casserly;
  • Partner at ByrneWallace, Emmet Whelan;
  • CEO of Transparency Ireland, John Devitt;
  • Managing consultant at BEO Solutions, Bernadette Treanor;
  • Member of the Advisory Board of the Early Learning Initiative in Dublin’s North Inner City, the Cross-Border Early Years Strategy Group and the CRINNI Early Childhood Research Group, Jenny Bernard, formerly of the HSE;
  • Managing Director of Raiseaconcern, Philip Brennan;
  • Director of Powerscourt group, Jack Hickey; and
  • Independent HR consultant and member of PAI’s Academic Council, Sile O’Donnell.

 

Chairman William Maher BL began the morning’s discussions.

 

The date was noted as being close to the three year anniversary of the seminal piece of legislation, the Protected Disclosures Act 2014 – an Act that Mr Maher noted shifted “how we treat whistleblowers and how we view them in society”.

He continued further:

“It’s no great secret that the recent social political discourse has been shaped by protected disclosures. This can clearly be seen in the two recent investigations that came off the back of claims of wrongdoing, and the treatment of those who made the disclosures subsequent to this.”

An important part of the legislation was its overarching nature. Previously, various pieces of sectoral legislation covered Protected Disclosures. However, with this Act, for the first time, we have a broad overarching legislation that sets protections “with no minimum terms of service”.

The morning’s keynote address was delivered by Labour leader, Brendan Howlin TD. Deputy Howlin spoke at length about a subject area that “seems to follow [him]”.

 

He spoke at length of the origins of the Act, which goes back almost two decades. It was first introduced in 1999 as a Private Members Bill. Its six sections laid out many of core elements of the current regime. It protected employees who reported wrongdoing “reasonably and in good faith”. It also prohibited the penalization by employers of employees who make disclosures on that basis.

At the time, it was also included with Freedom of Information legislation. Deputy Howlin noted that the progression that allowed the legislation to be separated from FOI legislation was a positive thing, as this could have meant a more convoluted process.

Due regard was payed to the tendency towards what the Deputy called a “blind-eye mindset” and the seriousness of the consequence of such a mindset.

 

He also commented,

“The tendency for institutions to close ranks on one of their own who want to do right is very worrying. We’ve seen it with the Church and with the Gardaí.”

Oftentimes, in the past, reporting wrongdoing was also tinged with the fear of facing civil liability. Protections were ultimately included in the current regime to protect against this.

Deputy Howlin noted the long and arduous path the legislation took to get enacted. However, he noted that “the Bill could be better for the rigor of the process”.

He closed his presentation by outlining the true purpose of the Act:

“We wanted to change the law, but the real intention was to change the culture. Culture change is much more profound, but much harder to affect. No doubt we have still a long journey to travel.”

 

William Beausang opened his presentation by commenting,

“There are two things you shouldn’t see happening – legislation and sausage-making.”

He noted that “to ground the discussion, we should look at what the legislation is and what it is not.”

For example, it does not create a regulatory framework for protected disclosures. The legislation isn’t silent on the mechanism for protected disclosures, and there is a requirement to have a procedure in place. However, there is no blueprint for such a procedure. This is where the DPER Guidance on the legislation comes into play.

It is important to keep in mind that Protected Disclosures and “blowing the whistle” are “not comparable to all grievances in employment”. That is to say, cases such as bullying are not covered by this legislation.

At the moment, there “isn’t a rule book or a play book on making protected disclosures”. Often, a disclosures is not deemed to be protected until after the fact, when a third party becomes involved.

 

Mr Beausang expressed a sentiment that would be echoed throughout the morning’s presentations. In these sort of instances, it must always be a “case of distinguishing between the message and the messenger”. Interpersonal grievances, the motivation of the whistleblower, is irrelevant. It is what they say that matters. By focusing on this you can build “the open, high-trust environment that you need” to operate fairly and transparently.

 

One of the key elements of the guidance, he said, was the screening assessment phase. You should ask yourself, “is it likely to be a Protected Disclosure? ‘If in doubt, leave it out’ is not an appropriate attitude, your mindset should be, ‘if in doubt, leave it in’.”

Communication is essential. There should be some form of feedback for the disclosure. You will have a balancing act on your hands, so that individual doesn’t feel as if they’ve not been listened to. The screening assessment is an important milestone.

What are the parameters of a protected disclosure? There has to be “a conveying of facts that would signify wrongdoing”.

The whsitleblower must be operating on the “reasonable belief” of wrongdoing. They may not be correct, they can be wrong, it could “be an honest mistake”. They may not have the full facts. Mr Beausang said it was important to highlight the fact that, “No worker will be penalised for getting it wrong.”

 

Dermot Casserly spoke next. He dedicated his presentation to exploring what the Act provides for.

The legislative definition of a Protected Disclosure allows for the communication “of relevant information that in the reasonable belief of the worker for that tends to show relevant wrongdoings”.

There are eight categories of relevant wrongdoing set out in the Act. They are:

  • Commission of a criminal offence;
  • Failure to comply with legal obligation;
  • A miscarriage of justice;
  • Threat to health and safety of any worker;
  • Damage to the environment;
  • Improper use of funds;
  • Any act that is oppressive, discriminatory or negligent; and
  • Destruction or concealment of information relating to any of the above.

 

The Act incentivises making disclosures internally.

While motivation is strictly irrelevant in the investigation of claims, the Act prohibits the person who makes a disclosure from doing so for personal gain. Where compensation is requested, motivation can become relevant; any awards can be reduced by 25% if motives are believed to be bad.

 

An important part of the legislation is that, notwithstanding certain sectoral obligations, there is no legal onus on employees for reporting any wrongdoing.

However, there is an obligation on the person to whom the disclosure is made to protect the identity of the person who made the disclosure. The whistleblower can choose to waive their right to anonymity. Under due process, the person against whom the disclosure is made has the right to confront their accuser. This is where a lot of the tension can begin, if the whistleblower refuses to go forward as a witness.

He reiterated the importance of having procedures in place, focusing largely on the screening process.

 

Emmett Whelan of ByrneWallace was mainly concerned with the responsibilities of the person to whom disclosures are made.

“There are pros and cons to every piece of legislation”, he said. “There is a lot of criticism of the current legislation that says it is skewed too much in favour of the whistleblower”. The idea that there is “not enough protection for the accused” is common.

These issues do not exist in a vacuum, they are politically and legally charged.

 

Practically speaking, there are processes for the recipient of the disclosure. He continued, “There are different kinds of recipients”. These are present in the legislation and can be someone within the organisation (manager, dedicated person), another responsible or prescribed person, the Minister of the relevant Department, or a legal representative.

There is a central disclosures recipient as named in the Act that can be contacted on points of security, defence, international relations and intelligence. Justice Cook recently appointed to this position by An Taoiseach.

There can be criticism of using line managers to receive employee disclosures, as “they may be in the firing line”. The Act doesn’t specify to whom you should make the disclosure. Even if the line manager is not the procedure’s specified contact, an employee “can go to a line manager and make the disclosures and it will still be protected under the Act”. Therefore, Mr Whelan noted, training and awareness should become part of the organisational culture.

 

Protected Disclosure procedures should allow for some flexibility dependent on the scale of the wrongdoing. If it is, comparatively, something minor, the person who receives the disclosure could reasonably assess the issue. However, if it something bigger, it may be necessary to establish an investigative panel or bring in independent third-party investigators.

On the issue of protecting the identity of the whistleblower, people often ask, “can I confer with someone else?” Mr Whelan assured that you can, as long as due regard is paid to the maintenance of protecting the identity at the assessment stage. At the investigation stage, anonymity can be waived with permission from the person who made the disclosure, or if it is necessary to carry out the investigation of the wrongdoing.

The Board should oversee the process as a whole. However, there is little need for them to take a hands-on approach. There should be a policy statement in place, approved by the Board. Each Board member should be dedicated to this policy.

 

By way of advice, he made two suggestions:

  • If you receive a disclosure, keep a detailed record of when it was made, what was disclosed and the actions you took; and
  • Ensure there is proper integration of the organisation’s disciplinary process and the procedure for investigation of Protected Disclosures.

 

The open-floor discussion following the first set of speakers raised some interesting questions.

One delegate asked, “If there has been findings that suggest no wrongdoing occurred, is there an obligation to tell the person against whom the disclosure is made that a disclosure was made?

The legal professionals on the panel noted that, “if findings indicate no wrongdoing, you don’t technically have to comply with fair procedure. However, best practice would be to comply anyway, especially where reputational damage is a risk, going forward.”

Where a disclosure is made to a Minister, can they delegate the assessment to someone in their Department and thereby reveal the identity of the whistleblower?

Evelyn O’Connor of DPER weighed in on this. She said that the advice is that “once there is a policy or procedure in place, they can then delegate”. This applies when the allegation isn’t against the Minister. The employer is named within the Act, not the Minister.

Elaine Quinn of the Department of Social Protection asked: “What do you do if you have the opposite, someone who has been very vocal, even though the Department feels as if the disclosures have been dealt with?”

The advice of the panel was that there should be a roadmap in place. However, an employee can still go “off the track”. There could potentially be some confusion about whether or not to go about disciplinary actions. Communicate as much as possible that there procedures in places, if the problem is ongoing, stronger actions might be taken. Chairman William Maher noted that if that person has had every opportunity to make a protected disclosure by the book, you can look at what other employee relations procedures can be pursued. It is worth noting that taking a disciplinary case can just be “adding fuel to the fire”.

Finally, a question from the floor considered: “Should a disciplinary process be suspended to investigate a separate, unrelated Protected Disclosure?”

Emmett Whelan noted that “legally, no, as they are unrelated”. However, this is usually only feasible in theory. Practically, the time and effort that goes into the dealing with the Protected Disclosure can often hinder disciplinary action. He asked the room at large, “what is your priority, dealing with a systemic issue or an individual?”

On this note, William Maher reiterated one of the themes of the morning, it is important to “separate the message and the messenger”.

 

Following a mid-morning break, Mr Maher welcomed our panel of speakers “with the benefit of the broad range of experiences”. He also briefly ran through the results of PAI’s survey into Protected Disclosures in public sector organisations.

The survey showed that a significant number of organisations processed no Protected Disclosures. Mr Maher noted that the grey-area between a “grievance matter versus what constitutes an actual Protected Disclosure may account for the low number”. Of particular concern is that 80% of those surveyed questioned the adequacy of training available to those in their organisation for addressing these issues. This shows that “there is a yearning for steps to be taken to promote knowledge of what the Act entails and how to deal with it”.

 

John Devitt responded that this was “not that surprising”. In his experience, there is “very low awareness, in large part”. Further, there is “no requirement for private sector organisations to have a policy in place”. This is at odds with European best practice. For example, in France there is a requirement for employers with over 100 staff to have a Protected Disclosures policy in place.

“There is still an awful lot of work to be done with employees.” In his experience, he found that “attitudes to whistleblowers were generally better among employers than amongst employees.” This is a theme that will continue to be repeated throughout the remainder of the morning.

 

Bernadette Treanor spoke about the inadequacy of the language when paired with the lack of knowledge.

“Even if you just take the idea of ‘reasonable belief’; how do you decide that? You should look at the information they had at the time and make a judgement on whether or not they could have believed it with the knowledge they had.”

Assessments should go through a “checklist exercise”. Where there is less serious wrongdoing, there might be an informal way of dealing with this. However, if it continues as an on-going behaviour, then you should move into a disciplinary processes. “Separating out these issues is a big job. It’s mentioned in the guidance but there is no defined process.”

 

One of the most meaningful accounts from the panel lay in the words of Jenny Bernard. Formerly of the HSE, she uncovered systemic problems with the care of young children and made a disclosure under the Health Act 2007.

“It was the leadership and management at senior level denying there was malpractice in the leadership and management”. She echoed Mr Devitt’s point of the attitude of employees to whistleblowers. In her experience, opinions were split among her colleagues – some were supportive, while others fell into negative views in believing that she was “a snitch”. The language used is often skewed in favour of the organisation, or against those reporting the issues. Words such as “accused” only add to this culture.

Further to Deputy Howlin’s comment about how organisations can often tend to “close ranks” when reports of wrongdoing are made, Ms Bernard added:

“The provision of services and the protection of citizens should be paramount to the discomfort of the persons against who allegations are made. The issues are often systemic and not personal attacks.”

She commented further,

“Critically, the role of leadership in responding to concerns sets the cultural view of how this information is received and dealt with.”

 

It was, undoubtedly, a very emotional topic for Ms Bernard, as “there were very serious misgivings occurring with very young children.”

This, coupled with the negativity in the workplace, and the fact that this was a “very long, arduous process” had lasting effects on her. A year after Ms Bernard’s original disclosures, RTÉ released a report entitled Breach of Trust, which delved into the problems with the care of young children in the country. At that time, the “organisation was insisting there was nothing to see. The programme brought public attention to the issue and other investigations began on the back of this.” Subsequently, Jenny was asked to give advice on policy reform in this area. Her final thoughts were practical and poignant:

“At an organisational level, be careful with secrecy. Bringing forward complaints should become a part of everyday life in the organisation.

“On a personal level, listen to what the person has to say, and remember that it’s not easy to bring something like this forward”.

 

Philip Brennan outlined the work of Raiseaconcern. They often act as an intermediator in Protected Disclosure cases. They are “someone who is independent from the organisation that is examining the issue, listening, communicating and moving between parties. Thereby they are providing a mechanism to go between the two without revealing the identity of the discloser.

Further, “[They] focus on the problem, not the person.”

In this way, they provide comfort for whistleblower and benefit the employer as they can attack the issue without bias.

 

There are, he noted, sanctions in place for the protection of those against whom the disclosure is made. Where claims are made recklessly and prove false, there can be civil liability for the whistleblower on the basis of a defamation suit. Where malicious claims are made about law enforcement professionals, criminal action can be pursued. However, this could be seen as a deterrent against making claims. Mr Brennan noted that in the UK, there was a positive burden on the discloser to assure the truth. This was later removed and replaced with a good faith stipulation much like the one operated on in Ireland.

Adding to the dialogue of the morning, Mr Brennan said,

“Always look at the substance of the claim, not the person. We need to create a culture where poor practice can be challenged, where we become more comfortable with it.”

He believes there is too much of an emphasis on the Act. We should be putting more emphasis on the organisational culture – “something that’s in the DNA of the organisation” wherein reports of wrongdoing are escalated and dealt with. We need to get to a place where the consensus on reporting wrongdoing is: “It’s a positive thing to do”.

 

Jack Hickey addressed the crowd regarding the reputational risk inherent in a whistleblowing case.

Employees are often the first people to notice wrongdoing happening in an organisation. The longer they malpractice goes on, the greater the risk of reputational damage.

The current Act favours an internal regime of reporting and investigating. Globally, 90% of people report internally at first instance. However, there are cases “where the wrongdoing is so far-reaching” that the person making the disclosure does not feel it will be received in an unbiased way, or where they go straight to the press.

 

Mr Hickey noted the increase in the number of whistleblowing cases of late. This can be attributed to the effects of the global economic crisis: a move towards radical transparency, and a challenged belief in authority. Technology also plays a great part, as we now have a mass proliferation of information.

We are not, however, at the front of the pack when it comes to addressing whistleblower concerns. In fact, he said “Ireland has absolutely and completely destroyed the lives of whistleblowers”.

These instances should be seen as an opportunity, not a crisis. It is a chance to make a change in your organisational culture.

“No one judges you for having a crisis, they will judge you for how to deal with it … [And] if you are not talking about yourself, someone else will.”

It is important, then, to address the situation, acknowledge the shortcomings and use it as a chance to change things.

We must also be mindful of our personal biases against certain types of people. He said, “We tend to ignore those who are angry or incoherent. They can often come across as someone who does not bow easily to authority.” Further, “frustration is expected where the issues are grievous”. He took up the reprise that it is “very important to focus on what is being said, not who is saying it.”

 

Sile O’Donnell closed the morning’s discussions with a look at the HR perspective on protected disclosures.

Her presentation was permeated with the repetition of the theme that we must move from “passive compliance to cultural change”. The role of HR leaders and managers, as well as HR policy, as a means to initiate cultural change. However, what is down on paper is very different in real terms than what actually happens from the top down. For those aiming to build new HR policies that enable and encourage improvements, there are “a lot of different data sources that can give you valuable information about the day-to-day workings of the organisation.” However, it is important to stay cognisant of the difference between the espoused priorities and the realities of the organisational culture. Ms O’Donnell advised: “Don’t just use data to diagnose shortcomings, use it to affect change”. These ideals should be “incorporated at every stage of development of HR policies, with due regard to the actual culture as opposed to the perceived or desired culture”.

In doing so, you can enable real change in your organisation. When you compare the “close-to-the-chest”, “nothing-to-see-here” cultures in the UK and Ireland with the culture of transparency and fairness adopted in places like Norway, you will notice a marked improvement in the levels of satisfaction and engagement in workplaces in the latter environment.

Being a whistleblower “can be a lonely and isolating place”. Knowing how to make a protected disclosure is one thing, feeling safe and confident doing it is another. She begged the question,

“Why do people battle with themselves over whether or not to make a disclosure? What is it about our organisational cultures that means people feel they have to go the formal, structured route of a Protected Disclosure?”

It is important to ask yourself: does your organisation send out subtle, or not so subtle, vibes that that would not be the right thing to do?

Ms O’Donnell believes that we should encourage people to value high standards of care.

She begged of the delegates, “Stop focusing on the negatives”.

Ask yourself, “How can we use this to make change? How can we raise standards of care?”

 

The final discussion session also brought up some interesting questions. One of the most discussed was the issue of “a single point of contact for clarification of points of Protected Disclosures, akin to that of Dignity at Work complaints apparatus”.

Philip Brennan noted that Raiseaconcern’s helpline often fields calls about whistleblowing. In his experience, people do not often call with no particular case in mind. There is, he comments, “no smoke without fire”.

John Devitt noted that a twin-track approach has proved useful in the past, for organisations that strove to change in the wake of a whistleblowing case. This entailed running an information line and a line that could take anonymous complaints. It was a case of having a “Helpline (ask us)” and “a Hotline (tell us)”.

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