SECTION: REGULATORY COMPLIANCE

Is Your Organisation Whistleblower Ready? Is Your Organisation Whistleblower Ready?

Published: 02.10.2015 |
Last Updated: 30.10.2015
carmichael
carmichael
Robert Kelly

Robert Kelly is co-founder and director of FraudEdge Limited. He is a fellow of the Institute of Chartered Accountants in Ireland, a Certified Fraud Examiner and holds a Diploma in International Financial Reporting Standards. FraudEdge is solely focussed on assisting their...

Is Your Organisation Whistleblower Ready?

The Protected Disclosures Act, 2014 – Code of Practice Launched

The Protected Disclosures Act 2014 (“The Act”) became operational on 15th July 2014 and is intended to provide a robust statutory framework within which workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace, safe in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

Public sector bodies must now put in place whistleblowing policies which meet the requirements of the Act. Where private sector and nonprofit businesses have policies in place, they need to review them to ensure that they are aligned with the requirements of the Act and that there are no gaps leaving them with a potential exposure.

What is Whistleblowing in the workplace?

Whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as a possible fraud, crime, danger or failure to comply with a legal obligation which came to the worker’s attention in connection with the worker’s employment.

A protected disclosure is the disclosure of relevant information that is reasonably believed by the worker to show one or more of the following wrongdoings:

a) offences that are or are likely to be committed;

b) failing to comply with legal obligations;

c) miscarriage of justice;

d) health and safety risks, including risks to the public as well as to other workers;

e) damage to the environment;

f) the unauthorised use of public funds or resources;

g) oppressive discriminatory or grossly negligent action or inaction by a public body;

h) information showing any matter falling into categories above may be destroyed.

What Guidance is Available?

In response for requests for guidance the Labour Relations Commission in consultation with IBEC and ICTU has recently launched a Code of Practice and sample Whistleblowing Policy which will become secondary law as soon as the Minister signs off on the drafts.  

Key Features of the Code of Practice (COP)

  • The COP is to be mandatory for all public bodies and it is “highly recommended” for all employments to have an agreed Whistleblowing Policy in place with clear and agreed procedures for making protected disclosures.
  • It states that it is in the best interest of all concerned that disclosures about alleged wrongdoings are managed internally in the first instance whilst acknowledging that there may be instances when this is not appropriate.
  • It confirms the definition of a ‘worker’ is a wide one and extends to employees, civil servants, members of An Garda Síochána and the Defence Forces, trainees, agency staff, independent contractors and consultants.
  • It sets out the difference between a grievance and a Protected Disclosure for the purposes of the Act and makes it clear that workers should be made fully aware of this distinction. A grievance is defined essentially as a matter specific to that person’s terms and conditions of employment and is not a matter to be treated as a Protected Disclosure.
  • For example if a worker has not been paid the correct rates of overtime as stipulated in his contract then this is a terms of employment issue and should be dealt with as a grievance whereas a situation where an employer requires an entire workforce to work off the clock for no pay or for cash in hand is likely to be a protected disclosure.  
  • It also confirms that a disclosure can be made anonymously and that a disclosure could be made before the commencement of the Act.

What Should A Whistleblower Policy Address?

As a starting point, a whistleblowing policy should address some of the following points:-

  • The policy should make clear that the organisation is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner when they discover information that they believe shows wrongdoing. Essentially the policy should underpin that the organisational culture is such that workers feel comfortable and confident about reporting wrongdoing;
  • The policy should make it clear that the organisation will not tolerate the penalisation of a worker who discloses information in line with the policy;
  • It should set out a clear roadmap for employees. It should recognise that an organisation takes malpractice seriously. It should be very clear that whistleblowing concerns are distinguished from worker’s grievances;
  • A policy should provide examples of the types of concerns that may be raised by workers. In this regard the list should be linked to the provisions of the Act and set out the relevant wrongdoings;
  • An acknowledgement that workers have the option to raise concerns outside of line management. There are different evidential burdens in the Act which an employee must reach in deciding to make a disclosure to his employer, relevant body or some other external entity;
  • Workers should be able to access confidential information from an independent body;
  • A policy should state that an organisation will respect the identity and confidentiality of the whistleblower and the policy should identify when and how concerns should be properly raised outside the organisation;
  • Workers should be made aware at the commencement of their employment and on a regular basis thereafter, of the whistle-blowing policies in the organisation;
  • Employers should ensure that the provisions of the policy are communicated, and that training is provided to those tasked with receiving disclosures;
  • An employer should, on an on-going basis, monitor the effectiveness of the above steps and respond accordingly if changes are required.

Summary

In light of the Act and Codes of Practice employers need to ensure that they are “whistleblowing ready”. Public sector employers need to put policies in place to comply with the Act’s requirements and Code of Practice. Best practice for private sector and nonprofit employers will require a review of existing policies to ensure that they are aligned with the requirements of the legislation.

 

For more information and/or to download the resources referred to above contact the whistleblower.ie team at info@whistleblower.ie

My Top Tips
Top Tips
1
Recruit the organisation’s leadership to champion the introduction of the whistleblower policy and culture. This set the tone from the top that whistleblowers are encouraged to speak up and will not be penalised
2
Set up a working group to review existing policies against the LRC Code of Practice to ensure that they are compliant with the 2014 Act.
3
Nominate an independent source of information for staff.
4
Provide appropriate training to staff and management.
5
Consider the benefits of anonymous reporting service.
SECTION 6: REGULATORY COMPLIANCE

Is Your Organisation Whistleblower Ready? Is Your Organisation Whistleblower Ready?

Published: 02.10.2015 |
Last Updated: 30.10.2015
carmichael
carmichael
Robert Kelly

Robert Kelly is co-founder and director of FraudEdge Limited. He is a fellow of the Institute of Chartered Accountants in Ireland, a Certified Fraud Examiner and holds a Diploma in International Financial Reporting Standards. FraudEdge is solely focussed on assisting their...

My Top Tips
My Top Tips
My Top Tips
1
Recruit the organisation’s leadership to champion the introduction of the whistleblower policy and culture. This set the tone from the top that whistleblowers are encouraged to speak up and will not be penalised
2
Set up a working group to review existing policies against the LRC Code of Practice to ensure that they are compliant with the 2014 Act.
3
Nominate an independent source of information for staff.
4
Provide appropriate training to staff and management.
5
Consider the benefits of anonymous reporting service.

Is Your Organisation Whistleblower Ready?

The Protected Disclosures Act, 2014 – Code of Practice Launched

The Protected Disclosures Act 2014 (“The Act”) became operational on 15th July 2014 and is intended to provide a robust statutory framework within which workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace, safe in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

Public sector bodies must now put in place whistleblowing policies which meet the requirements of the Act. Where private sector and nonprofit businesses have policies in place, they need to review them to ensure that they are aligned with the requirements of the Act and that there are no gaps leaving them with a potential exposure.

What is Whistleblowing in the workplace?

Whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as a possible fraud, crime, danger or failure to comply with a legal obligation which came to the worker’s attention in connection with the worker’s employment.

A protected disclosure is the disclosure of relevant information that is reasonably believed by the worker to show one or more of the following wrongdoings:

a) offences that are or are likely to be committed;

b) failing to comply with legal obligations;

c) miscarriage of justice;

d) health and safety risks, including risks to the public as well as to other workers;

e) damage to the environment;

f) the unauthorised use of public funds or resources;

g) oppressive discriminatory or grossly negligent action or inaction by a public body;

h) information showing any matter falling into categories above may be destroyed.

What Guidance is Available?

In response for requests for guidance the Labour Relations Commission in consultation with IBEC and ICTU has recently launched a Code of Practice and sample Whistleblowing Policy which will become secondary law as soon as the Minister signs off on the drafts.  

Key Features of the Code of Practice (COP)

  • The COP is to be mandatory for all public bodies and it is “highly recommended” for all employments to have an agreed Whistleblowing Policy in place with clear and agreed procedures for making protected disclosures.
  • It states that it is in the best interest of all concerned that disclosures about alleged wrongdoings are managed internally in the first instance whilst acknowledging that there may be instances when this is not appropriate.
  • It confirms the definition of a ‘worker’ is a wide one and extends to employees, civil servants, members of An Garda Síochána and the Defence Forces, trainees, agency staff, independent contractors and consultants.
  • It sets out the difference between a grievance and a Protected Disclosure for the purposes of the Act and makes it clear that workers should be made fully aware of this distinction. A grievance is defined essentially as a matter specific to that person’s terms and conditions of employment and is not a matter to be treated as a Protected Disclosure.
  • For example if a worker has not been paid the correct rates of overtime as stipulated in his contract then this is a terms of employment issue and should be dealt with as a grievance whereas a situation where an employer requires an entire workforce to work off the clock for no pay or for cash in hand is likely to be a protected disclosure.  
  • It also confirms that a disclosure can be made anonymously and that a disclosure could be made before the commencement of the Act.

What Should A Whistleblower Policy Address?

As a starting point, a whistleblowing policy should address some of the following points:-

  • The policy should make clear that the organisation is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner when they discover information that they believe shows wrongdoing. Essentially the policy should underpin that the organisational culture is such that workers feel comfortable and confident about reporting wrongdoing;
  • The policy should make it clear that the organisation will not tolerate the penalisation of a worker who discloses information in line with the policy;
  • It should set out a clear roadmap for employees. It should recognise that an organisation takes malpractice seriously. It should be very clear that whistleblowing concerns are distinguished from worker’s grievances;
  • A policy should provide examples of the types of concerns that may be raised by workers. In this regard the list should be linked to the provisions of the Act and set out the relevant wrongdoings;
  • An acknowledgement that workers have the option to raise concerns outside of line management. There are different evidential burdens in the Act which an employee must reach in deciding to make a disclosure to his employer, relevant body or some other external entity;
  • Workers should be able to access confidential information from an independent body;
  • A policy should state that an organisation will respect the identity and confidentiality of the whistleblower and the policy should identify when and how concerns should be properly raised outside the organisation;
  • Workers should be made aware at the commencement of their employment and on a regular basis thereafter, of the whistle-blowing policies in the organisation;
  • Employers should ensure that the provisions of the policy are communicated, and that training is provided to those tasked with receiving disclosures;
  • An employer should, on an on-going basis, monitor the effectiveness of the above steps and respond accordingly if changes are required.

Summary

In light of the Act and Codes of Practice employers need to ensure that they are “whistleblowing ready”. Public sector employers need to put policies in place to comply with the Act’s requirements and Code of Practice. Best practice for private sector and nonprofit employers will require a review of existing policies to ensure that they are aligned with the requirements of the legislation.

 

For more information and/or to download the resources referred to above contact the whistleblower.ie team at info@whistleblower.ie