Planning your 2017 HR strategy: Protected Disclosures

As Christmas draws ever closer, it is timely to review the HR issues that have arisen for your organisation during the course of 2016 with a view to planning your strategy for 2017. The Employment Team thought it would be helpful to highlight some of the major issues in employment law that have dominated during the course of the last 12 months and will continue to do so. These are the areas which should form part of your HR strategy for 2017.

In the third of our series of Insights, we look at developments in whistleblowing in the workplace which is governed by the Protected Disclosures Act, 2014.

Introduction

Almost on a daily basis, we see workplace whistleblowing stories in the media. Recently, we saw the case involving Lifeline Ambulances in which two members of staff, who had been made redundant, argued that their employment had in reality been terminated because they had made protected disclosures during the course of their employment. Similarly, St. Andrews School in Dublin was also in the media during November in circumstances where the principal of that school, whose employment had been terminated, alleged that she had been terminated because she had made protected disclosures during the course of her employment.

Therefore, the issue of whistleblowing, or protected disclosures, and the making of such disclosures in the workplace is something with which all HR professionals and business owners must familiarise themselves. A great starting point in this regard is the Code of Practice on Protected Disclosures Act, 2014, (“the Code”), released by the Department of Jobs, Enterprise and Innovation in October 2015.

The aim of the Code is to help employers, workers and representatives to understand the law relating to protected disclosures and also to give guidance and set out best practice on how to deal with protected disclosures in the workplace. The underlying principle of the Code is that disclosures should be dealt with, where at all possible, in the workplace and this is vitally important from a business perspective to ensure that employees are encouraged to make disclosures to their employer as opposed to bringing them externally.

The Code also helpfully sets out a list of wrongdoings which may fall into the definition of “protected disclosure” as follows:

• The commission of an offence – past, present or future.
• Failure to comply with a legal obligation (other than one relating to the worker’s own contract).
• Miscarriage of justice.
• Health and safety of any individual.
• Misuse of public money.
• Gross mismanagement by a public body.
• Damage to the environment.
• Destruction or concealment of information relating to any of the above.

The Code reminds us that it is now mandatory for all public bodies to have in place an agreed Whistleblowing Policy setting out an accessible procedure for making protected disclosures and underpinning a culture of encouraging workers to speak out if they have genuine concerns. However, importantly, the Code also states that it is highly recommended for all employers, regardless of sector, to have such a Policy in place.

As best practice, a policy should be developed and put in place on foot of agreement with all stakeholders in the organisation, i.e. management, workers and their representatives. In general terms it should be simple and easy to understand, and set out a clear “roadmap” for dealing with protected disclosures.

Conclusion