Protected Disclosure Legislation: Discussion

I welcome members and our guests. We are joined by Mr. John Devitt, Ms Stephanie Casey, Ms Lorraine Heffernan and Dr. Lauren Kierans. Mr. Michael Clifford, the journalist, is also attending. He has experience and plenty of knowledge in this area.

The purpose of the meeting is to discuss and set the backdrop to the protected disclosure legislation review that will take place shortly. The format will see Mr. Devitt and Mr. Clifford each giving an opening statement, after which we will have a questions and answers session.

I remind everyone about privilege. If witnesses are in the Leinster House campus or at the convention centre, they have privilege. If they are not, they may only have limited privilege. They should not name anyone in such a way as to make him or her identifiable.

I invite Mr. Devitt to make his opening statement.

Mr. John Devitt

I thank the committee for inviting us to contribute to it about the issues encountered by whistleblowers and related challenges faced by organisations in Ireland. I am joined by Ms Heffernan, acting legal counsel for Transparency International Ireland, TI Ireland, and managing solicitor of the Transparency Legal Advice Centre; Ms Casey, programme manager at TI Ireland responsible for our Integrity at Work programme; and Dr. Kierans, BL, lecturer in law at Maynooth University and an associate of TI Ireland. Their biographies have been included in our written submission and we would be happy to answer whatever questions members may have.

I should explain who we are and what we do, particularly our work with whistleblowers and organisations. TI Ireland was founded in 2004 and is a member of the Transparency International movement of anti-corruption organisations, which has its international secretariat in Berlin. We engage in lobbying, research and advocacy aimed at addressing the risk of corruption. In 2009, we began lobbying for what became the Protected Disclosures Act 2014. In 2011, TI Ireland launched the country's only freefone helpline for whistleblowers and witnesses of wrongdoing. In 2016, we established an independent law centre, the Transparency Legal Advice Centre, which provides free legal advice to people making protected disclosures or disclosures of wrongdoing, and launched Integrity at Work, a programme aimed at helping organisations to create safe working environments for people to speak up.

Since we launched our Speak Up helpline, we have helped in or around 1,850 clients, of whom approximately one in three have been categorised as having made protected disclosures. We observed a 120% increase in the volume of calls to the helpline after the 2014 Act was introduced. Of these, more than 100 clients have been referred to the law centre for free legal advice. Each client receives an average of more than 30 hours of free support, valued at approximately €10,000 per client. In addition, 30 organisations have joined the Integrity at Work initiative, including 12 agencies sponsored by the Department of Justice and three institutes of technology sponsored by the Department of Education.

The work we do informs our analysis and recommendations to employers and the Government and is published in our biennial Speak Up report. We have also gathered data through our integrity at work survey, which highlights some cultural as well as systemic issues that the committee might find of particular interest. Workers might gain some encouragement from the perhaps counter-intuitive finding that most people blowing the whistle at work say that they have not suffered as a result. Of the 150 or so private sector employees who took part in our integrity at work survey in 2016 and said that they had spoken up about wrongdoing at work at some point during their careers, only 21% said that their disclosures had had a negative impact on them. In contrast, 28% said that the outcome had been positive. This finding is similar to those highlighted in employee surveys in other jurisdictions and suggests that most employers act responsibly.

However, it would be unwise to take this statement at face value alone. If one concludes that one in five workers is penalised for speaking up and translates that figure to the Irish workforce, it suggests that more than 30,000 people have suffered some type of detriment for blowing the whistle at some point in their careers. Indeed, it only takes one person to be made an example of for their co-workers to be silenced or one nurse to remain silent for patients' lives to be put at risk. Conversely, we can see the role that just one public servant can have in exposing malpractice to understand the importance of whistleblowing in making our public services more open and accountable.

The benefits of whistleblowing are increasingly recognised, and according to the Association of Certified Fraud Examiners in the United States, 48% of all cases of fraud are exposed through tip-offs from staff. The evidence in favour of protecting them from reprisal by their colleagues or employers is incontrovertible and is why Ireland and other EU member states have begun enacting and implementing stronger legal safeguards for whistleblowers.

Despite the introduction of these safeguards, whistleblowers continue to bear the overwhelming burden and risk of speaking up. According to our research, workers lose more than 90% of protected disclosure claims brought before the Workplace Relations Commission, WRC. Work by Professor Kate Kenny and others shows how whistleblowers in certain sectors such as banking can find it impossible to find work in their given professions again. The impact of reprisal on family, physical well-being and the mental health of whistleblowers can be devastating.

It should also be noted that it is the fear of futility as much as the fear of reprisal that serves to deter people from speaking up.

It might not be surprising that one of the most common sources of complaints to our helpline relates to a failure to investigate wrongdoing. When an employer or regulator fails to address a concern, it exposes the worker to reprisal by allowing his or her colleagues to infer that the worker is in some way unreliable or untrustworthy. Indeed, the UK courts have found that a failure to investigate may be considered a form of whistleblower detriment. When the employer’s default position is to challenge a legal ruling in favour of a whistleblower, it risks prolonging unnecessary hardship for the whistleblower and his or her family, courting public controversy and undermining public confidence in that institution.

The difficulties employers face in dealing with protected disclosures should also be taken seriously. They often struggle to meet the expectations of workers who might reasonably ask that they be kept informed of the progress of investigations. They might not be aware that a whistleblower is being penalised. Balancing the rights of whistleblowers and respondents can be difficult, and those accused of wrongdoing and their representatives will often mount stiff challenges to assessments or investigations. Employers might not have the resources to investigate or the necessary skills or knowledge to do so, while State bodies often find themselves investigating concerns only to find that an investigation is already under way by a different agency.

More guidance and support for employers in dealing with protected disclosures will help, as will forthcoming changes to the law, but training, education and public awareness are essential. Our research suggests that only 30% of Irish private sector employers have procedures in place. It is essential that organisations of all sizes and sectors adopt policies and procedures in preparation for the transposition of the EU whistleblowing directive later this year.

Members will see that we have made recommendations to the Government on overcoming many of these challenges and we are happy to discuss the solutions we offer or propose.

I thank Mr. Devitt and invite Mr. Clifford to make his opening statement.

Mr. Mick Clifford

I thank the committee for the invitation. I am happy to answer questions about any of the issues raised. My familiarity with the Protected Disclosures Act comes through my work, in which I have encountered dozens of people who have made disclosures. For the greatest part, these people have been from elements of the public rather than private sector, although not exclusively. I have been in the position where disclosures have been made to me as a journalist, which is provided for in the Act, but mainly it has involved people coming to me after making a disclosure. In that respect, I highlight the report of the disclosures tribunal, in which Mr. Justice Peter Charleton suggested the Oireachtas might revisit the Act to see whether it required further legislation to ensure that disclosures would not be leaked to reporters or politicians. His recommendation came on foot of events that surrounded the leaking of disclosures at one point in the Maurice McCabe case, which was the focus of that tribunal.

My experience, including from that case, suggests that any such move would be retrograde. For instance, I dealt with one case in which an anonymous disclosure was made against management in a State agency. The allegations in the disclosure were serious, involving the misuse of public money and alleged sexual harassment in the workplace. It would have taken two phone calls to confirm the bones of the allegations within the disclosure, opening the requirement to proceed with a full investigation. Instead, nothing was done for three months. The Irish Examiner published details of the disclosure at that point and an investigator was appointed within days. Ultimately, the allegations were found to have been entirely accurate. It is reasonable to wonder whether anything of substance would have been done if the issue had not found its way into the public domain.

That case points me towards the second issue I will highlight, namely, the period it takes to complete investigations on foot of disclosures. The case I outlined lasted almost a year. I am aware of two cases that are still live more than three years after the disclosures were made. Frankly, I find it difficult to accept that matters could not be progressed with greater urgency, especially given that many cases have been farmed out to external agencies for investigation.

As an example of how long it takes to process some disclosures, another story I worked on involved allegations of malpractice in the Prison Service that emerged in an affidavit. This is all on record and has been published and officially acknowledged, so I am not revealing anything under privilege that is not in the public domain. The then Minister for Justice and Equality ordered an inquiry from the Inspector of Prisons into the matter. There were some complicated aspects to the investigation, yet the inspector delivered her report within four months. I find it difficult to believe that many of the investigations into disclosures could not be conducted with that level of urgency.

Finally, I turn to the issue of penalisation. I have on numerous occasions encountered disclosers who were adamant they had been penalised as a result of their actions. Sometimes it is possible to confirm this and I have done so, whereas in others it is not as easy or accessible. I am acutely aware a discloser may well perceive penalisation when it is not happening, but experience has shown me that in many cases, penalisation does occur. Again, being a member of the media, this may well sound as if it is coming from a place of self-interest but it is the truth as I perceive it - I have experienced occasions when the publication of details of penalisation has resulted in it easing, if not stopping. I think there has been only one major case in which a discloser has had his allegations of penalisation confirmed by the Workplace Relations Commission and compensation awarded. That is an onerous route to take, however, so one element of the Act that might require further examination is that which deals with protections for the discloser and issues relating to penalisation.

I thank Mr. Clifford. Apologies have been received from Deputy Pearse Doherty.

Gabhaim buíochas leis na finnéithe as teacht os comhair an choiste, ar an ábhar fíorthábhachtach seo. Chomh maith leis sin, gabhaim buíochas leo as an sárobair atá á dhéanamh acu ar an gceist seo.

I welcome our guests. In particular, I welcome Mr. Devitt and acknowledge the great work Transparency International Ireland does. This is a really interesting topic for us to discuss and I welcome the opportunity to ask questions. When we deal with the transposition of the EU whistleblower directive later in the year, I am sure TI Ireland will make valuable contributions to the debate. I have read its recent report, Speak Up 2020, in which it highlighted some significant causes for concern, such as the 120% increase in the number of whistleblowers seeking advice from the Speak Up helpline. The organisation’s legal advice service is encouraging in the sense that people are increasingly speaking out but, on the other hand, it is disconcerting because if they have to call TI Ireland, they must believe the internal mechanisms in their organisations are perhaps not offering an appropriate avenue for redress. As we saw with Maurice McCabe, it took many years, great sacrifice and personal suffering before the truth was acknowledged. Following on from that case, are the avenues for people to blow the whistle adequate? Where do the greatest improvements need to be made?

Mr. Mick Clifford

As I said, the issue of penalisation, in particular, does not appear to be covered in the Act to the extent that it has prevented penalisation, as I have encountered on a number of occasions. The other issue, although this probably cannot be dealt with through legislation, relates to delays in respect of investigations. I try to look at the issue neutrally but, to me, this appears in some instances to be connected to a wish not to get to the bottom of things.

Perhaps Mr. Devitt can respond or I can move on to my next question.

Ms Lorraine Heffernan

Clients regularly express that they have suffered reprisals for making disclosures. When a client comes to us it is often the situation that he or she is aware of a wrongdoing but is afraid to disclose and wants to know the protections. Support for people making disclosures is very important because people want to know how to approach this technical and legal arena.

In terms of reprisals, one thing to be mindful of is that unscrupulous employers will invent things so they can accuse an employee in order to distract from a wrongdoing. Therefore, it is important that we train people so that they know when they receive a disclosure what they are dealing with, how to identify what a protected disclosure is and certainly how to penetrate any inventions that employers might make.

I am not sure whether Mr. Devitt is back online.

Mr. Devitt's microphone does not seem to work, which is similar to me and is why I am using headphones. I gathered from the chat that he will leave and rejoin the meeting.

I suggest that the Deputy continues with her questions and we can come back to the issue again.

The Speak Up report has recommended that all organisations have whistleblowing procedures in place and that access to the employment law system is expanded to include all workers who have been penalised for making protected disclosures. Where are the biggest gaps in public bodies, local authorities and private businesses, etc? I ask the witnesses to explain the recommendation that the employment law system should include all workers who have been penalised for making protected disclosures.

The Speak Up report noted that there is a general lack of trust in public institutions in this State, as evidenced in a recent survey on corruption in the EU that was conducted by Eurobarometer. Corruption in this State is viewed by the public to be a significant problem and I was startled that 68% of respondents said that corruption is widespread. Transparency International's division here and its global organisation more generally have dealt with corruption risk in public procurement. I have a particular interest in public procurement. It is an area where significant corruption risks can arise. How do the witnesses view the risks posed to this State's public procurement regime? What risk reduction measures would they like to see introduced?

We have heard that retaliation against healthcare whistleblowers is a common phenomenon and is believed to pose serious risks to patients and safety. Almost 40% of healthcare whistleblowers who contacted the Speak Up helpline between 2017 and 2019 reported that they were penalised after raising concerns about wrongdoing. Recently serious issues were highlighted in the media about the Department of Health collecting information on children with autism, which seems to have taken place completely without the knowledge of the Minister. We know that Ministers are ultimately responsible for their Departments but in reality there are things that they are not aware of. Do the witnesses think something needs to be done to improve accountability, within the Civil Service or elsewhere, when there is an awareness that these things are going on? If so, what recommendations would the witnesses make in regard to this matter?

These questions are open to all our guests.

Ms Stephanie Casey

I manage the integrity at work programme at Transparency International Ireland. It is a programme of support that is provided to employers around the whole area of whistleblowing and protected disclosures.

On the question around channels for reporting, the facilitation of reporting and is there enough out there, it is quite interesting to understand how people want to report. We carried out the first national survey on attitudes towards whistleblowers and whistleblowing in 2016 before we launched this programme. We found that the majority of workers want to report to their line manager in the first instance, which is a view that is reflected in international research.

When we consider internal whistleblowing systems, or the external systems Mr. Clifford talked about which can involve reporting to journalists or Deputies, it is very important to recognise that the work must start within the organisation to build a culture where staff feel safe enough to come forward and raise a concern in the first instance, and where that report can be dealt with rapidly because that is where people want to go. They want to go to their line managers and report internally, which we have seen in some of the cases that have been referenced, such as the case in the Department of Health and other cases in the public domain.

Deputy Farrell is right that the increase in the volume of calls to the Speak Up helpline reflects a growing awareness or, indeed, a growing need among workers to speak up. It also reflects the work that we have done through the programme and through our work in Transparency International Ireland to promote the helpline as an additional resource that is there for workers. They can call the helpline before they report. We do not want people to approach us as their last course of action. We want to be their first course of action and our promotion of that also explains some of the increase in calls.

Mr. John Devitt

I am sorry but I missed most of the questions asked by Deputy Farrell. To reiterate what Ms Casey has said, the helpline is a first port of call for people.

In terms of the earlier question, the helpline complements the support that employers might give their staff. As Ms Casey might have said, we work with about 30 employers that are mainly in the public service. They are asked to advertise the availability of these free supports through the helpline. Our goal is to make sure that people make an informed decision before they speak up, which is considered good practice in the corporate sector. A number of multinational companies provide the facility to allow people to think an ethical dilemma through and seek advice on whether what they have witnessed is a protected disclosure or a grievance.

The goal is to make sure that people make an informed decision before they go to a lawyer. One of our goals is to make sure that people do not litigate. If workers and employers are at loggerheads and are before the Workplace Relations Commission or the civil courts, we see that as a failure. These protections and the legislation should not be seen as the last resort. We want to encourage employers to make sure they have the necessary support in place so that people can seek advice and think these dilemmas through before things escalate. We also want employers to be well positioned to act on concerns promptly and thoroughly.

Mr. Mick Clifford

My experience in that regard is that, as was mentioned by Ms Casey in particular, most people go internally initially. My encounters with whistleblowers, so to speak, have largely occurred when they have perceived that internal efforts have failed. In one instance, for example, a person made a protected disclosure to me as a journalist on the basis that a colleague of the person had made a protected disclosure internally and not only did it not go anywhere, but the person was perceived to have been penalised. People going outside tends to be largely a last resort, unfortunately.

Mr. John Devitt

According to international data, more than 85% of people - 92% in the UK - attempt to report to their employer in the first instance. Dr. Kierans has done research on this area. It is only where the person believes the employer has not taken decisive action in response to the concern that he or she will seek to report externally.

Does that answer Deputy Farrell's questions?

I think Dr. Kierans was going to come in on that issue. The only question on which I have not got a response related to procurement. I know Dr. Kierans wished to come in on the previous issue. Mr. Devitt stated she has carried out research on the area.

What is the Deputy's question that was not answered?

It relates to procurement. The Speak Up report notes a general lack of trust in public institutions in the State. I was quite surprised that 68% of people think corruption is a widespread problem. I know that Transparency International, both within the State and as a global organisation, has dealt with corruption risk in public procurement. Public procurement is an area of particular interest to me. What are the views of the witnesses on the risks posed to the State public procurement regime? What risk reduction measures would they like to see introduced?

Dr. Lauren Kierans

In response to the Deputy's question on channels of disclosure, this is something I assessed by looking at the case law under the Protected Disclosures Act for a six-year period between 15 July 2014 and 15 July 2020. I discovered that in 85.6% of the cases the worker had gone internally with the disclosure in the first instance. There was only one case in which the worker had gone externally in the first instance to make the disclosure. However, in 22% of the cases where the worker had gone internally, the worker subsequently went externally because he or she was dissatisfied with the response or there was no response whatsoever. The legislation allows for that. It allows for alternative disclosure recipients. Under the EU directive in particular, we will see the extension of an obligation. All public bodies are currently obliged to have whistleblowing procedures in place to deal with disclosures from their employees but this will be extended to the private sector for organisations that have more than 50 employees. Further, there will be no threshold if the organisation is in the area of financial services, preventing money laundering and terrorist financing, national transport or the environment. Essentially, this means workers mostly go internally but if the disclosure is not handled correctly, they go externally. It is to be hoped that the new obligations under the EU directive will enhance the responses internally to workers' disclosures, meaning they will not have to go outside the organisation with the disclosure.

Mr. John Devitt

The European Commission commissioned a study in 2017 on the question of public procurement corruption and the potential impact of enhanced whistleblowing frameworks. According to the EU, between €1.5 billion and €2 billion is lost to the EU economy through corruption in public contracting. Ireland was considered to be relatively low risk compared with some other member states, particularly newer members of the bloc. It is a risk nonetheless and we have highlighted it in previous reports. I will not go into too much detail on our recommendations around public contracting, which go back to 2012. Needless to say, enhanced transparency, including the publication of all contracts awarded above a certain value, would be helpful, as would anti-corruption training for public contracting and those in sensitive roles in public procurement, as well as enhanced disclosure of their financial interests. According to the report commissioned by the EU in 2017, the benefits of implementing whistleblower procedures in Ireland outweigh the financial cost by a factor of between 1.4:1 and 2.3:1. It is believed that for every euro invested by the State in promoting whistleblower procedures, the State saves between one and a half and two times that amount in potential procurement fraud. In the context of the role of whistleblowing in preventing losses through fraud, waste and corruption, the investments made in protecting whistleblowers far outweigh the costs of implementing those procedures.

I thank our guests for giving us their time and expertise. When the Protected Disclosures Act was enacted in 2014, it was probably among the most significant legislation to have been enacted by the Oireachtas in the past 20 years or so but it is very complicated. Under section 17, protected disclosures can, in certain circumstances, be made to Members of the Oireachtas if they relate to certain law enforcement issues. Several years ago, my former colleague, Caoimhghín Ó Caoláin, and I received a protected disclosure. Obviously I cannot go into too much detail on the disclosure. It is a legal minefield but in the circumstances of that disclosure it worked out very well and quite promptly. Mr. Clifford referred to the need to speed up the process. Has it become a very legalised process and is that part of the reason it has become so slow?

Mr. Mick Clifford

That is quite possible. I am not really sure what the reason is. I find it difficult to understand, particularly because several State agencies, as a result of previous experience, now farm out investigations to outside agencies. Obviously, those agencies are paid by the hour. The case to which I referred went on for the best part of a year. I find it amazing that it took so long. Notwithstanding that, one of the issues that has arisen in several of these investigations is slow co-operation from people asked to provide evidence. That has definitely been an issue and it is ongoing. I do not know whether it is because they have become overly legalistic. It may be the case that some of these agencies are involved in several different jobs and, therefore, only dedicate a certain amount of time to each investigation on a weekly or monthly basis. I find it very difficult to understand how it continues to take so long.

The other issue in that regard is that once an investigation is completed, there is often a protracted period before the whistleblower is informed that there has been an outcome - he or she is not given the full result - and told what exactly is being done in pursuit of it. That is also an issue that is protracted.

Would the legislation benefit from strict timelines being put in place the same way that has been done in the context of some planning legislation where there are specific requirements for responses to be delivered within a number of weeks?

Mr. Mick Clifford

I think it definitely would. As the Deputy is aware, time limits have been put into other legislation, for example, particularly in relation to the assessment of children with needs. Very often the limits are just not observed, leaving the person with the prospect of going to court to have it rectified. There certainly would be no harm in it. Mr. Devitt and his colleagues would probably be more well versed in the details of it. There would be no harm in something like that.

Perhaps I can ask Mr. Devitt and his colleagues to respond on that point. Do any of the representatives from Transparency International Ireland wish to comment on the issue of the new protected disclosures office that has been proposed in the general scheme of the amending Bill? Do they think it is a positive development and how do they think it will operate when it is enacted?

Mr. John Devitt

I am happy to respond to both of the Deputy's questions. The Deputy asked about investigations. Under the directive, Ireland will be expected to implement provisions in the Protected Disclosures Act, requiring employers over a certain size or within a defined sector to provide feedback to their employees. They will have to acknowledge protected disclosures within seven days and outline what action has been taken within a period of three to six months. It very much depends on the nature of the concern raised. If an allegation of a criminal nature is raised, the stakes are that much higher. Obviously, people have the right to fair procedure and rights under the Constitution to a good name, and so on. Therefore, those rights will also have to be considered when undertaking an assessment and investigation. However, clear guidance will be essential to employers and public bodies on how to assess and investigate these concerns in a way that means that whistleblowers are not left waiting years for a response or an outcome on foot of their concern.

The second question the Deputy asked was around-----

It was around the protected disclosures office.

Mr. John Devitt

We have suggested that something similar to an office of special counsel, as the US Federal Government has in place, protecting whistleblowers or reporting on the manner in which investigations have been carried out by federal agencies, be implemented here. We understand that the protected disclosures office here will help Departments and other prescribed persons like regulatory agencies to investigate and assess concerns that they might not be able to. We also suggest that this protected disclosures office also reports on the operation of the Act as it relates to the conduct of Departments and prescribed bodies so as to help improve or enhance internal procedures aimed at ensuring that both whistleblowers are protected and that the concerns they raise are acted on promptly. It is not clear from the heads of Bill, from what we can see, what the precise powers of that office will be. It should be more than just a postbox through which people can raise concerns.

Again, I come back to the point about resourcing and capacity. It is essential that State agencies, whether they are prescribed persons or Departments, are also equipped with the training awareness and resources they need to be able to effectively assess those concerns and then refer them on to whatever agency they believe has the particular capacity or is the appropriate one to deal with those concerns.

Finally, I ask Ms Casey, Ms Heffernan or Dr. Kierans to answer the following. Obviously, in the public mind, protected disclosure and whistleblowers are represented by people such as Sergeant McCabe or the great investigative work that Mr. Clifford does. However the vast majority of reliance upon this Act takes place within the sphere of employment law and it never really gets into the public domain. It consists of disputes between employers and employees. Many of the cases end up going to the WRC. Others are resolved before then.

Do the witnesses think that it is an issue that under the 2014 Act, an employee can receive up to five years' salary by way of compensation if they are penalised, but if they just leave under unfair dismissal in the orthodox way, they can only get up to two years' salary by way of compensation? I am not asking the witnesses to give a definitive view on it but do they think that it is an issue that there is a difference between what an employee could receive by claiming protected disclosure if there is penalisation on the one hand, as opposed to just orthodox unfair dismissal, on the other?

Dr. Lauren Kierans

To clarify, if a person alleges that he or she has been dismissed wholly or mainly for having made a protected disclosure, they can be awarded up to five years' gross remuneration. The cap on two years' remuneration for ordinary unfair dismissal does not apply. However, it is arguable that this is, unfortunately, a limitation. If we look to the UK, to claims under the Public Interest Disclosure Act 1998, on which the Irish law was originally modelled, there is no cap on the amount of compensation that can be awarded. The EU whistleblowers directive requires full compensation to be made. The Workplace Relations Act 2015 requires that awards that are just and equitable are also afforded. Therefore, a cap in compensation would not necessarily be considered to be just and equitable, or arguably full compensation. I would purport for the removal of a cap on any compensation. Further, the heads of Bill propose for the extension of protection against penalisation to other forms of individuals such as volunteers, trainees and those who were penalised in the course of making a protected disclosure when it comes to their attention in the recruitment process. It is proposed that there will be a cap on compensation for them of €13,000 for claims relating to penalisation. I would argue that this is not full compensation. It is not clear, from my perspective, where the figure of €13,000 is arising. I may need to look into it further.

I thank Dr. Kierans.

Does Ms Heffernan wish to comment?

Ms Lorraine Heffernan

I will make one other point on the issue. It is important to bear in mind that the level of award under the Unfair Dismissals Act is confined to pure financial loss. Therefore, if a worker is dismissed for having made a protected disclosure and they get another job fairly quickly, the level of compensation is going to be very limited. That also causes the disparity between someone who has been penalised while he or she is actually working and who potentially has access to a greater level of compensation than somebody who has actually been dismissed and has lost his or her job. I think there is an issue there.

I would also like to comment on the timeframes for investigations. The balance of power is not with the discloser; it is with the employer. The employer is in full control all the time. I have come across an investigation being dragged out. Often these workers are actually very loyal employees. They trust their employer to do the right thing. It is very disconcerting when they discover that something is going on the employer does not react in the way they think they ought to, an investigation then eventually starts but it gets dragged out. What happens then is that the employee loses their rights at the WRC if they trust in the process. It could be that they have been penalised and perhaps a period of over six months has passed. It is quite difficult to get an extension of time from the WRC if one does not bring one's claim within six months. That is another factor to bear in mind in trying to rein in those long investigations. Certainly, in my experience, client investigations regularly go on for over one year.

I thank Ms Heffernan.

I understand Ms Casey wants to come in.

Ms Stephanie Casey

I want to refer the committee to research carried out by NUI Galway and the University of Warwick, which looked at the price of speaking up. In a study of 92 whistleblowers across different countries, they found that 63% were dismissed, 62% were demoted and 28% ended up resigning as a result of speaking up. They found that the average cost of making a protected disclosure is in the order of about €28,000 per year to a whistleblower and the average income that is lost to a whistleblower, because of loss of income or a loss of job, is about €65,000 per annum. Therefore, there is a very significant cost involved for whistleblowers, which speaks to the point Dr. Kierans was making around the necessity to look at removing the cap on compensation.

I thank the witnesses.

I thank the presenters. It is very interesting. I want to begin by picking up on the issue of compensatory measures. I worry that the signal that very often gets sent in Ireland is that whistleblowers get punished and that they basically carry the price of taking action and of performing that public good by highlighting an issue. Therefore, I welcome the suggestions in respect of the changes to the compensation cap.

I have also encountered specific concerns and the witnesses might have a sense of whether these are more widespread. In particular, where there are compensatory measures to which persons are entitled and which they may be seeking after a process or after a whistleblowing, it may sometimes be the same persons about whom they made the disclosure who are effectively still in place within an organisation and who are part of the process for accessing the compensatory measures. Again, I do not want to speak to specific cases but that is a situation which has certainly come to my attention where persons have raised concerns about a body where they worked, or individuals in a body where they worked, and, effectively, they have seen the obstruction of ever receiving compensatory payments or measures.

I agree that it is appropriate that it is higher. It is different from unfair dismissal in that this often involves people at very senior level. When I looked at the breakdown of the age profile of those who are making protected disclosures within the Transparency International annual report, it was interesting how many people were older. I would like the witnesses to comment on whether security of contract is in itself one of the reasons that people who are 45 and older feel confident in terms of making protected disclosures because it does seem that the age skews quite a bit towards the older. Is there a concern around insecurity of contracts, particularly within very important organisations, State bodies and so forth, in terms of creating a culture where people are less likely to feel confident to raise concerns and blow the whistle?

I was also very interested in the comments in regard to the running of the clock and where an investigation takes a long time. It was mentioned that the Workplace Relations Commission option might expire for an employee but I also know there are situations where people have raised a concern and are blowing the whistle on something, and they then feel that they are under scrutiny. During a dragged-on investigation, there can be a period when the spotlight is on the whistleblower and they know excuses are being looked at in regard to undermining their future employment. That is one of the consequences of that dragged-on process. We want this legislation to create a situation in which people feel confident, safe and fully supported by the law and by best practice in coming forward.

On another issue, what is the experience of the witnesses on the practice of containment versus the expansion of inquiry, when an issue is identified by a whistleblower? What we would hope is that, where an issue is identified, it is used as a flag to spark wider investigation but it seems that is sometimes not the case. We are even seeing it, potentially, in regard to the files in the Department of Health recently, where they are talking about those specific files where concern was raised rather than maybe a pattern where vulnerable persons, such as those families with autism, may have been the subject of files within a Department. The witnesses might comment in terms of what best practice would look like where a flag is raised around bad practice and that becomes an examination of a pattern. Maybe that is something this new entity could facilitate or could drive, rather than it kicking into a process of containment around that specific aspect of the issue the whistleblower has flagged.

The witnesses might comment on those issues, namely, the question around the compensatory measures, the issues around how we create greater security in the workplace for those who are whistleblowing and the issue of how we go to a pattern examination rather than a containment response

. A further issue is one that follows up on the procurement piece. I have put a lot of focus on trying to bring more qualitative measures into public procurement. There is sometimes this idea that, in the State, our decision-making should be complex and we should be thinking about lots of things, such as environmental factors, social impact and all of these things in regard to procurement. However, one of the arguments I get is that they want processes to be simpler to avoid corruption, when it seems to me that, instead, we need processes to tackle corruption in order that we can have good quality processes. It is almost as if they like to strip it down to two variables as a way of mitigating against corruption when, in fact, eight variables would be good practice. It is a question of how we keep both of those parts of good practice at work.

Mr. John Devitt

I thank Senator Higgins. I am happy to take one or two of the questions and I will leave it to my colleagues, who are better placed than I, to talk about compensatory measures. When it comes to good practice, there are a number of resources and a great deal of research has been undertaken on this already, which we can send to the committee. One of the recommendations made in a report published a number of years ago by the Association of Certified Chartered Accountants, ACCA, in the UK was that employers use the information shared with them to address risk and to learn from their employees how they can improve their internal systems of controls, irrespective of whether wrongdoing is found. Too often, employers will consider the complaint, or the disclosure, purely on the basis of whether it meets the standard of a protected disclosure. Employers need to be equipped with the skills and resources they need to use this information as intelligence that can help to enhance internal systems of controls. It is something we have been trying to do through our Integrity at Work programme and we provide feedback to organisations which are members of the programme.

There is also a role for the protected disclosures office. I answered a question from Deputy Jim O'Callaghan about the role of the protected disclosures office in providing feedback to Departments, regulators and prescribed persons on how they can improve their internal controls, irrespective of whether any wrongdoing is found or whether someone meets the tests set out in the prospective disclosures legislation. There is an awful lot of information that is filed away, without being looked at again, that could be used to help improve those procedures.

On the question about protections, in our submission to the Department on the transposition of the directive we called for the extension of protections imposed under the directive to all categories of worker and for equal treatment of those on contracts of service as well as those on contracts for service to be able to avail of civil remedies.

I have a brief follow-up on that before the compensation questions. In that regard, a very strong argument has been put forward that local elected representatives should be within the new expanded category of worker in terms of who might be protected under the Act. Will Mr. Devitt comment on that?

Mr. John Devitt

I was going to add that. I agree that protections should be extended to local authority members, and to Members of the Oireachtas, perhaps, and members of the Judiciary, so they would be able to avail of the civil protections, be protected against civil liability for making a protected disclosure and be entitled to safeguards regarding their identity and confidentiality if they are making a protected disclosure. Case law is emerging in the UK which has defined members of the judiciary as workers as well. While not all workers will be treated the same or be entitled, for example, to bring a case before the Workplace Relations Commission, no more than a member of the Defence Forces would be able to avail of the same rights as somebody working in the Department of Defence, we could extend existing civil remedies and protections to other categories of worker and make it safer for those to speak up too.

There were other points raised by Senator Higgins. Do our other guests wish to respond?

Ms Lorraine Heffernan

On the question about greater security for whistleblowers, the answer lies in providing training for the disclosure recipients and a greater awareness of the rights of both the discloser and the persons of concern. When somebody makes a disclosure of wrongdoing in the workplace, it can be hard to hear that from an employer's perspective, and everyone feels under threat. If you treat the situation whereby everyone knows he or she is taken care of and that both the whistleblower and those who are implicated are going to be protected, that would enhance how things play out in the workplace and, it is hoped, would create a more secure environment for everybody.

With regard to a wider application, if you had a disclosure made to you and you wanted to carry out an audit of your systems, that will depend on the diligence of an employer. I have experience of that, where a discloser fed into a bigger process for strengthening financial controls inside the system. That happens and that is where you see the system working properly - somebody discloses something, it is taken on board and addressed.

With regard to procurement, that arose twice in the Senator's questions. One aspect of the Protected Disclosures Act that the whistleblower directive seeks to address is the area of penalties. The heads of the Bill are silent as to what penalties are envisaged under this new amendment, but if there are issues with procurement, it might be necessary to look at the penalties. It might be an area where sanctions are necessary to encourage it to work properly.

Mr. Mick Clifford

Very briefly with regard to waiting for investigations, my experience of dealing with some of them is that they are left in suspension. They are in a scenario whereby even their fellow workers are suspicious of them and they are not really sympathetic until such time, perhaps, as it has been shown that the disclosure the person made had a basis and was being done for the greater good of people in the workplace. That suspension leads to great stress for individuals who are left like that.

The other issue is whether investigations are approached as a matter of containment as opposed to looking at wider systems. By and large, I have found that if the management perceives the investigation as in any way - even remotely - reflecting badly on it, in that scenario all it is interested in is the containment option - get it done, ensure you go through the process and then, effectively, just sweep it aside. That is the experience I have had in dealing with people in that respect.

Dr. Lauren Kierans

In respect of the point the Senator made about time and the clock running as regards when the investigation is taking place, there is a risk that during that time the person is being subject to retaliation but is not, perhaps, aware of it because the person is sitting on the sidelines and waiting for everything to come to a conclusion. The problem with the person bringing claims is the time that runs from the date of the penalisation. I will explain that, and this ties into Mr. Devitt's point about to whom the protections are afforded. Employees can enforce their rights before the Workplace Relations Commission, while all other workers, including employees, have to go to the civil courts. Employees have to elect to go to the WRC while workers, other than employees, can only go to the civil courts.

If an employee is bringing a claim before the Workplace Relations Commission, he or she only has six months to bring that claim. The problem with regard to penalisation is that the time runs from the date of the first penalisation. Many claims have been deemed out of time. Some 30% of cases that have been unsuccessful are unsuccessful due to procedural grounds such as being out of time. In contrast, under the legislation in the UK, time runs from the date of the last penalisation, when the penalisation ends. There have been cases before WRC which were cases of suspension, allegedly because the person made a protected disclosure. They were filed before the WRC outside of the six-month time period, although the person was still on suspension. However, it was found that the person was out of time in filing the claim. That six months can be extended to 12 months in exceptional circumstances, but it is very rare that it would be extended. That is one issue in respect of the timeframe.

Second, we talk about the whistleblower protection as being the pan-sectoral whistleblower protection that gives protection to all workers, in contrast to the preceding sectoral approach to whistleblowing law. The differentiation of individuals as being employees or workers and where they can bring their claims is not a level playing field. Workers who bring claims before the civil courts are limited to bringing claims of detriment. Detriment is defined differently from penalisation under the Act. The definition of penalisation under the Act is a non-exhaustive list and contains a range of acts of omission that cause detriment to an employee. Furthermore, that is extended under the EU whistleblowers directive, but under the heads of the Bill it is only that definition of penalisation that applies to employees that has been extended. The claims before the civil courts are for this more limited form of detriment. Of course, if you go to the civil courts, there are some disadvantages in respect of a costs order being made against you if you are unsuccessful and the time it takes for a case to be heard before the civil courts. Arguably, we need to treat them all in such a way that they all can go to the WRC, as Mr. Devitt mentioned.

I am conscious that my time is up, but I have a very brief question that perhaps could be incorporated into later answers.

The senior executive accountability regime is something we have talked about a lot in this committee and which is meant to be in place, whereby senior executives become individually responsible in respect of bad practice and so forth. Would the witnesses have comments, within their answers to other representatives later, on the importance of us putting in place a senior executive accountability regime?

Also, could there be some clarity around the prescribed person? Sometimes there is ambiguity, whereby somebody is given something because he or she is the prescribed person, and then, when that person changes role, he or she says it was given to the role rather than to the person. When something is given to a prescribed person because of his or her role, is the disclosure regarded as having been given to the role or to the person? My understanding is that it would be the person when he or she was in that role. However, I have had ambiguous opinions given to me about that. I know others need to come in, so perhaps there may be a chance for the witnesses to come back on that later.

I thank our guests, Transparency International and Mr. Mick Clifford. It has been a very informative session. I pay tribute to their enormous work over the years in this area. Some things they have said in both submissions are stark with regard to the delays in investigation, accountability as to who undertakes an investigation, and the issue of penalisation.

My first question relates to who should conduct an investigation. I note Mr. Clifford said in his submission that many cases are farmed out to external agencies for investigation. I would like to hear the perspectives of TI and Mr. Clifford on who should undertake an investigation. Should it be solely an external agency or does it need to be a public body? Do we need to standardise that process? I am aware of a protected disclosure at the moment about which there is an argument between two Departments as to who should be investigating. I would like to hear the perspectives of the witnesses on best practice in terms of who investigates.

Mr. Mick Clifford

From my observation, a number of State agencies have adopted the position that best practice when it comes to protected disclosure is to farm them out to consultants from investigative bodies to do it. From what I can see, though, that has done nothing to shorten the time of investigations. In terms of perception, an issue that could arise when the senior management of a State agency retains a particular agency to an investigation is the relationship between the two. You can have an unspoken understanding. For example, there could be a situation whereby an investigative body will be aware that if it goes down a particular route, its services might not be retained the next time someone is employed to do such an investigation. It is difficult to get somebody who is completely removed or hands off from the management of a particular arm against whom a protected disclosure is made or within whose body a protected disclosure was made. That is very difficult. Obviously, the ideal thing would be to be as hands off or as removed as possible from the senior management of an agency or arm of State. Most of my experience is with public bodies.

I would like to hear Transparency International’s perspective on that as well, please.

Mr. John Devitt

I will come in and then allow my colleagues to come in if they have any additional points. It depends on the nature of the wrongdoing disclosed. An employer, whether a Department or otherwise, might be best placed to investigate directly, for instance, in a health and safety concern. There may be circumstances where it does need to retain the service of an assessor to do a preliminary investigation if is a protected disclosure, who would then suggest it be referred on or that a full investigation takes place. It very much depends on the nature of the wrongdoing alleged and on the competence of that body to investigate the concern. This is because not all Departments or State agencies would be able to undertake or, for example, have people trained in investigative techniques to undertake a fair, thorough and swift investigation. More often than not, it is a botched investigation that will lead to more delays. It is better to get it right in the first place.

The Department of Public Expenditure and Reform, as members will probably be aware, has a framework in place whereby it publicly advertises for investigative and assessment services. That framework can be used by Departments or other agencies to refer on requests for an assessment and investigation. I do not have any data or analysis available to suggest whether that is working as it should. However, examples other jurisdictions should strike a cautionary note here. In the Netherlands, for example, a centralised house of whistleblowers or a whistleblowing authority was established number of years ago. It led to even more delays because all concerns had to be raised through, and investigated by, the same agency. It did not always have the capacity to investigate concerns related to everything from civil aviation to fraud or whatever the concern might have been. It is important to note that point about the nature of the concern.

There were questions about enhancing protections for whistleblowers. The best protection is the one that does not have to be called on. We have talked about public contracting. Prevention is better than cure. Workers would be better served, or just as well served, by enhanced transparency within, for example, our public contracting system as they would by enhanced whistleblower protections. Nobody should have to bear the burden of making our public contracting service or system more transparent. More information needs to be disclosed more proactively by State agencies at a pre-tender stage and at all stages of the public contracting cycle. More information needs to be disclosed on the awardees of public contracts so that it is not left up to a single public servant to have to leak information to a journalist about alleged malpractice in the public contracting system.

Likewise, our freedom of information, FOI, regime, while stronger than it was up until 2014, could also be reconsidered in light of our discussions around whistleblower protection so that more information is proactively released. This would also be so that journalists or those working in civil society would not have to pay disproportionate fees for appeals or search and retrieval fees for information that should already be in the public domain.

I thank Mr. Devitt and Mr. Clifford for their responses. I would like to pick up on what they said with regard to experiences in other countries. We have the transposition of the EU directive later this year. Particularly on the detail of the Bill we will have to enact in this country, are there practices in other countries we can adopt here? Mr. Devitt spoke about the experience in the Netherlands and perhaps centralisation of an investigation is not the road to go down, but are there other aspects of systems in other countries, especially in regard to penalisation and best practice, from which we can learn and adopt?

Mr. John Devitt

I think Senator Higgins raised the question of a senior executive accountability regime. In the UK, the Financial Conduct Authority can impose administrative fines on senior executives in banks who have been found to penalise workers for raising concerns. One example involved a fine of more than £600,000 against a senior executive who had sought to find out who had made a protected disclosure against them. Administrative sanctions would assist. I have forgotten the question.

Mr. Devitt has answered some of it in terms of best practice from elsewhere. I have a question regarding the heads of the Bill we have now, particularly the reversal of the burden of proof in the context of the WRC. I am conscious Mr. Devitt has said it should not have to go to the WRC but, for the cases that do, it seems a positive development that the reversal of the burden of proof puts the onus on the employer rather than the worker to prove the case. Are there other areas in that Bill where we need to go further? I heard about the lifting of the salary or compensation caps and the timeframes. Are there other parts of the Bill we have an opportunity to change that would strengthen the system for whistleblowers in this country?

Mr. John Devitt

Members ought to be cognisant of Article 25.2 of the directive, which contains a non-regression clause. Transposition of the directive cannot weaken existing safeguards for whistleblowers. A number of suggested provision proposals in the heads may be perceived as undermining existing protections, such as the current right to report to a Minister or Department. That ought not to be weakened and Departments need to be strengthened in dealing with protected disclosures or given the option of referring them on to the protected disclosures office or a relevant agency. Public service workers should still be able to report to a Minister for the Department to determine whether he, she or it has the capacity to deal with that. Likewise, they should be able to make anonymous disclosures. The 2014 Act is silent on anonymous disclosures, meaning people can remain anonymous and, depending on the quality of information shared, there may still be an obligation on the recipient to investigate that concern.

Going back to the question of protections, all employers should be obliged, as is the case with the Safety, Health and Welfare at Work Act, to have policies and procedures in place. Many charities, including small ones, will already have protected disclosure policies. Sample policies are available under the code of practice from the WRC which can be adapted or adopted by employers of all shapes and sizes in all sectors. In our view, there is no reason the provision around procedures and policies should be limited to employers with only 50 or more staff. That would create confusion. Many employers are small to medium-sized enterprises whose staff sizes fluctuate from year to year and it is important they all understand they have to have these procedures in place in the same way they have to have procedures and policies around bullying, harassment and other health and safety risks.

Dr. Lauren Kierans

I will respond to a couple of the issues the Senator raised, beginning with some advantages of other countries’ legislation. It is worth bearing in mind that the EU whistleblowers directive is about minimum standards. Member states, including Ireland, are entitled to go beyond those. This is a fantastic opportunity for Ireland to fill the holes regarding what is in the directive and not in our legislation currently and to learn from mistakes we have observed over nearly seven years of the legislation being in place. For example, in Australian legislation there is an obligation on employers to carry out a risk assessment of harm to workers who make protected disclosures. Part of their internal process of dealing with the disclosure is to look at the risks to the individual raising the concern and at what measures need to put in place to ensure they are not at risk of retaliation.

The Senator raised the issue of the reversal of the burden of proof. That is within the EU whistleblowers directive. It is not currently in the heads of the Bill. It is expected it will be included. Under our legislation currently, in any legal proceedings it is accepted a disclosure is protected until the contrary is proved. That is great. It is one hurdle the worker does not have to overcome. It is assumed to be a protected disclosure. However, depending on the nature of the claim, the burden is different. If it is for unfair dismissal, the burden is on the employer to show why the employee was dismissed. In penalisation claims, however, the burden of proof is on the employee to show why he or she was penalised. It can be extremely difficult to prove as the employee does not have access to the relevant information the decision-maker had access to.

Mr. Devitt mentioned the research carried out by Transparency International Ireland on success rates under the Protected Disclosures Act. Having looked at that in my research, I found 88% of cases were unsuccessful and 12% were successful. The burden of proof is one issue to be taken into consideration.

Something we could do beyond the directive, which the Senator mentioned, concerns accountability for organisations that do not have protected disclosure procedures. Obligations on the public sector include prescribed persons. They are only obliged to have procedures for their own employees, but I discovered in my research that 68% of prescribed persons had no information about their role publicly available on their website. This will be a new obligation under the whistleblowers directive but we need to see some accountability and sanction for failure to comply. If the public sector does not have procedures in place, there is no redress or remedies for the worker. In legal proceedings, if there is evidence the public body did not have a policy in place, that is not taken into account in assessing the protected disclosure, retaliations and so on. There is no point in having these provisions in place unless there is some recourse for failure to comply.

With the Chair’s indulgence, I will ask a short question that requires a short answer. Is that okay?

Short question, short answer. Yes.

I was struck by Mr. Clifford saying in his submission in regard to the long delays in investigation that it was only when he shone a spotlight on it, brought it to public attention and wrote about the issue that the investigation was speedily conducted and concluded.

In its research, has TI Ireland picked up on how long it takes to undertake investigations? When a protected disclosure goes public, does the pace of investigation speed up? Is there a distinct difference in the pace or length of investigation between those cases that go public and those that remain private?

Mr. John Devitt

I have only anecdotal evidence to support that. I do not have data to hand. Sometimes organisations act more promptly in cases of public scrutiny. As Dr. Kierans said, we suggest increasing oversight or imposing administrative sanctions on public bodies that do not have procedures in place in the first instance to deal with these concerns.

I welcome our guests. A total of 12% of cases were successful, while 88% were unsuccessful. On what basis were the 12% successful? Was there a general theme or was there a variety of reasons? What was the most common reason for the unsuccessful cases being unsuccessful? There have been suggestions that public servants do not wish to take decisions, refuse to take decisions or delay taking decisions on the basis that the decision may be misconstrued and they could become the subject of the investigation. Our guests might comment on that.

Dr. Lauren Kierans

If I may, I will answer the first two questions as they relate to the research I conducted on case law under the Protected Disclosures Act between 15 July 2014 and 15 July 2020. These were the decisions I was able to locate. I assessed the successful-unsuccessful rate under the Act of 156 cases. Of the successful claims, which amounted to 12%, or 19 claims, eight were successful on the grounds the employee was found to have been dismissed wholly or mainly for having made a protected disclosure, nine were successful on the grounds they had been penalised because of or in retaliation for having made a protected disclosure, while two were in respect of interim relief applications before the Circuit Court, whereby an employee can file a claim for his or her dismissal before the hearing of the substantive unfair dismissal claim.

As for the unsuccessful cases, I must correct the record. I stated that 30% were unsuccessful on procedural grounds but I should have said 30 cases, or 22%. A total of 107 cases, or 78%, were unsuccessful on their merits. Breaking that down further, I found that 45% of the cases were unsuccessful because there was no protected disclosure, 53% were unsuccessful because there was either no unfair dismissal or no penalisation, while two cases before the High Court were unsuccessful on the grounds they were appeals on a point of law from the Labour Court to the High Court where it was found that no error in law had been made by the Labour Court. In the majority of unsuccessful claims, therefore, it was found the employee had not been dismissed or penalised for having made a protected disclosure, while a total of 45% were unsuccessful because it was found there had been no protected disclosure.

How is the veracity of a case checked in the initial stages? For instance, a case could be vexatious or it could be a deeply serious case that requires urgent investigation. How is one case weighed against another? How are the rights and entitlements of the accused balanced against those of the accuser?

Mr. John Devitt

I am happy to come in here and I am sure my colleagues will be happy to contribute as well. We advise employers to ensure they have policies, systems and procedures in place, not just to investigate but to assess or screen a concern or potential protected disclosure when it is made. In doing so, they can determine its credibility and whether, in the first instance, it is a protected disclosure as defined in the Act or whether it should be handled through grievance procedures. As my colleague Ms Heffernan might have said earlier, provision should be made in the revised Act to distinguish between interpersonal grievances and protected disclosures. Employers will need to be offered guidance and training on how to sift the wheat from the chaff, so to speak, to distinguish between the two.

Ultimately, it is up to a court to determine whether a disclosure was a protected disclosure but we want to avoid, insofar as possible, cases reaching the courts because if they do, both the employer and the employee, and more often the employee, will have lost a great deal in taking a legal challenge. It is important, therefore, that employers have these systems in place. That is one reason we suggest the obligation to have policies and procedures under the revised Act should be extended to employers of all sizes and sectors. Ms Casey might have spoken about services we provide through the Integrity of Work programme to public bodies and members of the initiative. There is no easy answer to this. Rather, we suggest that all employers should seek to have policies and procedures and that they should be adequately resourced, in terms of both time and finances.

Ms Lorraine Heffernan

In respect of how to assess a disclosure, clear parameters are set out in the Protected Disclosures Act. When clients come to us, that is the first step we take. We have to check whether the information has come to them in connection with their employment and whether they have a reasonable belief that it shows one or more of the relevant wrongdoings set out in the Act. This is tied in to the issue to which Mr. Devitt referred. People who receive disclosures need to be trained to recognise a protected disclosure. He referred to grievances. At a webinar we held this morning, I commented on the proposed new section 5(9) in the heads of the Bill. It states "A matter is not a relevant wrongdoing if it is a matter concerning interpersonal grievances exclusively affecting the reporting person, namely grievances about interpersonal conflicts between the reporting person and another worker and the matter can be channelled to other procedures designed to address such matters." My point was that while I am sure that has been proposed as something perceived as helpful, when the definition is broken down there are four parameters to be met. Moreover, it refers to only one type of grievance, an interpersonal grievance. A High Court decision highlights the point I want to make, namely, that a grievance can contain elements of a protected disclosure.

That is why a recipient of a disclosure needs to be trained to recognise that something which might appear as a grievance in the beginning could have protected disclosure elements. If someone is not properly trained, he or she might dismiss something as merely a grievance when it does, in fact, contain protected disclosure elements, which can result in wrongdoing either not being detected or being wilfully ignored. We must also take into consideration the fact that the employment arena, as well as being a business arena, is a human relationships arena. Things do not happen within neatly defined parameters. A worker who comes across wrongdoing, particularly one who is a loyal employee, usually reports something but often is blindsided by the reaction of an employer who does not want to hear it. Something that will eventually become a protected disclosure may begin as a grievance. It is important to think about that issue.

In connection with the same issue, I will just mention that the directive is not something we are obliged to transpose. It is referred to in a recital and is suggested as something that we could consider doing. In my experience, it is something about which one would need to think carefully. The idea that a grievance can contain protected disclosures elements would need to be encompassed. That is the main point I wanted to clarify.

Dr. Lauren Kierans

When we talk about training, it is also important to note that the decision-makers at the WRC should also be receiving specific training in this area, as well as judges. The protection of whistleblowers legislation in Serbia requires judges dealing in the area of protected disclosures and whistleblowing to receive training. Six years after the enactment of that legislation, 1,100 judges have received protected disclosures or whistleblowing training. They are only entitled to hear those sorts of cases if they have received the training.

Protect, a whistleblowing charity based in the UK, has also suggested that similar obligations to those for judges and employment tribunals should be in place for decision-makers before they hear discrimination cases. Deputy Jim O'Callaghan earlier mentioned that this is a complex area of law. It is important that we have well-rounded training, not only for managers but also for those who are actually making decisions under the Act.

I will mention in passing that our Constitution is slightly different to those of other countries, some of which have no constitution at all, including our next-door neighbours. The UK has the Magna Carta but it is not the same thing. The constitutional entitlements of the individual are particularly important in this country, or at least some of us think they are. Their rights must be observed and the discharge of duty in their interests must be, or should be, observed at all times. Two other questions arise.

I ask the Deputy to ask his questions. Has he two questions to ask?

I have several questions that arise from some of the answers but we will not go through them all today. I have dealt with cases that were before the courts and the WRC. I will not go through them all.

I want to refer in particular to cases in which the interpersonal relationships within an organisation are particularly repugnant to an individual. A victim may have to suffer for a considerable time. What compensation is available in those particular cases where the victim is targeted over a period and is, in some cases, driven out of the employment by virtue of there being no recourse, as far as he or she is concerned, from any quarter and as a result, he or she is being victimised?

Before our guests answer that question, I will add a similar question. In the recent judgment delivered by Mr. Justice Richard Humphreys in the case of John Clarke v. CGI Food Services Limited, and I hope I have read this right, the judge said that the financial repercussions in the case were significant for the employer because the employer must now continue to pay the former employee pending the resolution of the matter. Do I take it from that judgment that a whistleblower is entitled to be paid for the duration of the period the case is being dealt with? Does that judgment stand? Will our guests comment on that and reply to the question put by Deputy Durkan? Perhaps Dr. Kierans would like to respond.

Dr. Lauren Kierans

That case relates to a payment that was secured under a Circuit Court application for interim relief and does not apply to all cases. It must be in response to a specific application brought by the employee within 21 days of dismissal.

It applies to a particular case rather than a judgment that can be broadly applied.

Dr. Lauren Kierans

Yes, absolutely. In this particular case, the applicant secured interim relief and secured payment until the hearing of his claim for unfair dismissal. However, this situation applies only to employees who have been dismissed and who satisfy that substantial grounds exist to contend that their dismissal was wholly or mainly for having made a protected disclosure.

Is there no law to ensure that a person is paid? A person may have made a protected disclosure and be out sick afterwards. Is the organisation or enterprise not obliged to pay such a person during that time?

Dr. Lauren Kierans

They are not so obliged under this legislation. This situation applies when a specific application is brought. However, it is worth bearing in mind that the heads of the Bill propose interim relief to be available to employees who have been penalised. The nature of the interim relief may be along the lines that an individual alleges that he or she is being harassed as a result of making a protected disclosure. In that case, relief may be an order for the harassment to cease, as opposed to an order for payment.

Will such a person not be paid when they are out of work? Is it the case that such a person could be paid? Will it be settled at the end? I am talking about the current legislation.

Dr. Lauren Kierans

Under the current legislation, whether or not such a person would be paid while out on sick leave would depend on the policy of the organisation in question. However, an employee who alleges he or she has been dismissed for making a protected disclosure can, before the hearing of a claim, avail of a continuation of pay, provided he or she can satisfy certain grounds before the Circuit Court.

What is Dr. Kierans' view on the case that was mentioned by Michael Clifford? The Department of Public Expenditure and Reform, in a report, cited that case as an example of how positively whistleblowers are dealt with. In the case mentioned, an award was given and that award is now being challenged by the State.

Dr. Lauren Kierans

Is the Chairman referring to the Dougan and Clarke case, as opposed to John Clarke v. CGI Food Services Limited?

No, I have moved away from the Clarke case. I am asking about what Mr. Clifford said earlier. It appeared as if the individual in the Prison Service was awarded a sum but that was challenged later. It just begs the question in all of this of the cost to the whistleblower of having to stay in the process while, at the same time, being penalised and, in some cases, out of a job while the State uses taxpayers' money to bring that whistleblower through the courts time and again. Would any of the witnesses like to comment on this?

Mr. John Devitt

I am happy to address it. The default position of State agencies, whether in medical negligence claims, claims on wrongful dismissal or penalisation under this Act, seems to be to challenge the application. I do not think it is a problem unique to this particular area of law. My colleagues might disagree or may have something to add. It is important that the Chief State Solicitor's office, or someone other than those drafting the legislation, also considers what strategies might be employed or reconsider the legal strategies employed in defending cases of this nature. As I said in my opening address, they can serve to prolong the distress that whistleblowers endure and serve to undermine public confidence in the agency if it is seen to challenge the decision in this way.

Earlier, Mr. Devitt was giving analysis of what whistleblowers in the private sector thought of the process and how satisfied or not they were. In the public sector, it seems to be quite different, in that there is free use of taxpayers' money and money paid into the State to defend the entity, whether a Department, an agency or a third level institution, whatever it might be. It is this which prolongs the time it takes to deal with it. The State has put in place whistleblower legislation and certain parts of the State turn around and challenge it at every corner and bend, to the extent that the whistleblower is the person who suffers and the wrongdoing continues. It is containment in a highly aggressive way. The State itself is culpable of causing further damage and harm to the individuals concerned and it does not seem to care. This sort of financial muscle on one side takes on an individual and literally blackguards him or her from start to finish and causes a mental breakdown or illness of some sort, and finally the person might give up. How does this get addressed in legislation?

In the context of a whistleblower who has made a protected disclosure and finds himself or herself in that predicament and reaches out to another party for help to highlight the issue, what is the obligation of this other party to support the whistleblower or to do something about it to highlight what is, in effect, further bullying and harassment by the State using the money the State has? Surely there has to be a level playing field for those who find themselves making a protected disclosure as loyal employees.

We have been discussing the make-up of legislation but the practical application of the legislation has caused serious damage to individuals and the State seems to get away with it. We need robust legislation that goes beyond the EU directive, which acknowledges the utter failure of the current legislation in the context of what is happening. Without Transparency International Ireland, and without Mr. Clifford in particular, many whistleblowers would have suffered really badly over a longer period. We need to address what will happen between now, under the current legislation, and a time when we will have new more robust legislation. Whistleblowers are really suffering. They reach out to Members of this House to support them and when they do, they get that support but if it goes up along the chain and they ask a Minister, the Taoiseach or whoever it might be for support, do they have an obligation at least to pay attention to what whistleblower tells them?

Mr. John Devitt

I will come in here briefly. It is essential, and the directive does provide under measures to support Article 20 and elsewhere, for free legal aid to be given to people making protected disclosures, as the Chair has said. The balance is tipped in favour of employers, whether in the public or private sector, and it is essential that workers are given free legal aid and support when taking challenges. It is also important that trade unions play a pivotal role in promoting the welfare of whistleblowers and in educating workers on their responsibilities to make sure their colleagues do not suffer as a result of speaking up. In many cases, it is not the employer who is directly responsible for reprisal but the co-workers of the whistleblower. They also have a role to play.

Mr. Mick Clifford

I want to pick up on the point Mr. Devitt has made about unions. In my experience of dealing with some of these issues, if there is a scenario in which one member of a trade union makes a protected disclosure and the person who may be an aggressor or who has transgressed is also a member of the union, what I have observed is the union is more inclined to side with the person who is the subject of the disclosure rather than the person making the disclosure.

On the point regarding the public sector, there definitely seems to be a scenario whereby in the private sector if a disclosure is made the relationship with the shareholders of that entity is such that they want the issue resolved, on the basis it will make the company or entity in the private sector function better and it is regarded in this way. This is largely the case but not exclusively. In the public sector there is an issue whereby senior management, in particular if it is a serious issue, perceive it as being a personal attack on them and they respond on this basis and, as the Chair pointed out, they do so with the full resources of the State behind them. It is certainly the case that it is very difficult to see how the public interest is being served in this scenario and it is definitely an area that, hopefully, could be addressed in some way through legislation.

Will all of the witnesses be making a submission on the new Bill?

Mr. John Devitt

We will make a submission and we will share it with the committee.

Will separate submissions be made by the witnesses or will there be a submission in the name of Transparency International Ireland? I ask the same question of Mr. Clifford. Will he put on record for consideration in the context of the Bill his experience and what he might recommend?

Mr. Mick Clifford

If it was worth anything, I certainly would.

I can do that and submit it to the committee if it is deemed to be of any help at all. That is no problem.

Mr. John Devitt

Transparency International Ireland is happy to make a submission on that. Dr. Kierans may want to make a separate submission as an academic expert in her own right.

Ms Lorraine Heffernan

I will be happy to partner with Mr. Devitt and we can make a joint submission on this.

Dr. Lauren Kierans

I am happy to make a submission. I have carried out extensive research on the Protected Disclosures Act and I believe lessons can be learned from those research findings.

That research is reflecting on the current legislation and how the proposed legislation can be improved.

Dr. Lauren Kierans

Exactly. I completed a PhD on the Protected Disclosures Act and I have identified certain lessons that we can learn on foot of transposition of the directive.

I am obliged to conclude the meeting due to the Covid-19 regulations. I thank the witnesses for coming before the committee. I sincerely thank Transparency International Ireland for the work it does. I particularly thank Mr. Clifford, who has led the way in regard to exposing quite a lot of the issues relative to the current legislation and how whistleblowers are treated. It is appropriate to caution the State that where a Department or agency is currently dealing with a case, it should deal with it in the context of the improvements that are being made to the legislation and of ensuring that the rights of the individual are not trampled upon and that they are dealt with fairly. The experience I have had to date leads me to believe the whistleblower becomes the target after the protected disclosure is made. They end up losing their jobs, they end up in poor health and they end up maybe not being able to be employed in the sector in respect of which they are qualified. That is not good enough. The State should lead by example and should not in any way undermine the rights or the dignity of an individual who is putting forward a protected disclosure and is a loyal employee of the agency or Department. It is frightening what is happening in Ireland relative to whistleblowers. I hope this discussion we have had as part of our pre-legislative scrutiny will help to bring forward a better piece of legislation and go beyond the European directive, as some of the witnesses have suggested. I again thank the witnesses. I am sure we will meet again in the course of the pre-legislative scrutiny.

The joint committee adjourned at 2.33 p.m. until 12.30 p.m. on Wednesday, 2 June 2021.