Whistleblowing in the workplace is a current hot issue that is increasingly being highlighted in the media and in the courts. The Protected Disclosures Act 2014 (the Act) protects workers from being penalised for whistleblowing.
The Act, which is over two years old, is particularly relevant to public body employers who are required to have a Protected Disclosures or Whistleblowing Policy in place. But private employers should also treat the Act with care and ensure they do not have any potential areas of exposure.
Here we outline our top tips to help employers to protect themselves.
1. Make sure to put a clear policy in place
Employers should have a comprehensive policy in place which outlines in clear language what a worker should do if a relevant wrongdoing comes to their attention. The policy should provide guidance on how a worker should make a protected disclosure and what details should be included in a disclosure. The policy should make it clear that any penalisation of a worker making a protected disclosure will not be tolerated and that the employer’s disciplinary procedure will be invoked against any worker or manager who engages in penalisation or threatened penalisation of a worker making a disclosure.
2. Respond appropriately when you receive a disclosure
In the case of a verbal disclosure, the person to whom the disclosure is expressed should listen carefully and give full attention to the discloser. It is recommended that a written record is kept of the disclosure. In the case of a written disclosure, the matter should be acknowledged in writing as quickly as possible and within the timeframe specified in the policy.
3. Be diligent in your assessment of the disclosure
Employers need to assess whether or not the concern raised should be treated as a protected disclosure or is more appropriate to another procedure, such as the employer’s grievance procedure. The matter would be classed as a grievance where it is specific to the worker eg, a complaint about terms and conditions of employment. On the other hand, a protected disclosure is where a worker has information about a relevant wrongdoing eg, information about the failure to provide or wear protective clothing and adhere to health and safety guidelines.
4. Carry out a fair investigation of the disclosure
Where the matter is being treated as a protected disclosure, further communication with the discloser may be necessary to clarify the concern raised or to request additional information. It could be the case that the matter may be addressed to the satisfaction of the discloser at this point. However, an investigation may be required. Any investigation should be conducted in accordance with the principles of natural justice and fair procedures. Remember that the matter may need to be reported to and investigated by an appropriate external enforcement agency or An Garda Síochána.
5. Communicate transparently with the discloser
Information on timelines, actions and outcomes should be communicated in writing to the discloser, upon receipt, after assessment and after investigation. Employers should not prejudice the outcome of any investigation in their communications with the discloser.