Protected Disclosures Presentation by Eithne O Sullivan to IIA Ireland Annual Conference 2018

Transcription

1 Protected Disclosures Presentation by Eithne O Sullivan to IIA Ireland Annual Conference 2018 Office of the Authorised Person 12 April 2018

2 What We Will Cover Today Introduction General Overview of Protected Disclosures Act Legislative provisions - Main components Review of the Protected Disclosures Act Sample of Feedback to DPER Consultation Challenges for the Health Sector Questions and Answers

3 Protected Disclosures Act 2014 Legislation and Guidance The legislation and guidance in place to support the above are: Protected Disclosures Act 2014 Statutory Instrument No. 327/ Protected Disclosures Act 2014 (Commencement) Order 2014 Statutory Instrument No. 339/ Protected Disclosures Act 2014 (Section 7(2)) Order 2014 Statutory Instrument No. 448/ Protected Disclosures Act 2014 (Disclosure to Prescribed Persons) Order 2015 Statutory Instrument No. 464/ Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 Department of Public Expenditure and Reform (DPER): Guidance for Public Bodies on the Performance of their Functions under section 21(1) of the Protected Disclosures Act 2014

4 Definition of Protected Disclosure 2014 ACT 5(1) For the purposes of this Act protected disclosure", means subject to subsection (6) and sections 17 and 18,a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in sections 6,7,8,9 or 10d (2)For the purposes of this Act information is relevant information if a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and b) it came to the attention of the worker in connection with the worker s employment

5 Relevant Wrongdoing Information that tends to show that: (a) an offence has been, is being or is likely to be committed, (b) a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker s contract of employment, (c) a miscarriage of justice has occurred, is occurring or is likely to occur, (d) the health or safety of any individual has been, is being or is likely to be endangered, (e) the environment has been, is being or is likely to be damaged, (f) an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) information tending to show any [of the above] matters has been, is being or is likely to be concealed or destroyed.

6 Other points Motivation of discloser is irrelevant It is a disclosure even if the person receiving the information is already aware of it May not be a disclosure: legal professional privilege or if function of employer/worker to detect, investigate or prosecute. In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed until the contrary is proved that it is. ( section 5 (8))

7 2014 Act - Workers An employee Independent contractors Agency workers An individual who is or was provided with work experience pursuant to a training course or programme or with training for employment otherwise than under an employment contract/by an educational establishment on its course 2014 Act does not include volunteers within the definition of worker

8 Who is the employer?-examples Employees of the HSE Independent contractors engaged by the HSE Agency workers Trainees HSE If the contract is with the HSE the HSE The HSE/the agency The HSE

9 To whom can a disclosure be made? Employer Other responsible person where disclosure relates to conduct of that person or something for which that person has legal responsibility Prescribed person under SI 339 of 2014 (as amended) Relevant minister Legal advisor Other cases (e.g. media or other outside person/bodies)- additional conditions apply

10 Methodology for making a disclosure? SI 464 of 2015 Industrial Relations Act 1990( Code of Practice on Protected Disclosures Act 2014) ( Declaration ) Order 2015-states that disclosures can be made anonymously and can be raised verbally or in writing. Advantages to a prescribed form Should not discount a disclosure made by an individual who does not use the prescribed form

11 Screening of Disclosures Concept of screening is employed in other policies for example, the Dignity at Work Policy DPER Guidance advises that a screening, that is an initial examination should be undertaken where a disclosure is made The screening is not an investigation of the alleged wrongdoing Screening is aimed at assessing whether the disclosure should be treated as a protected disclosure

12 Personal Complaints Could a complaint of bullying constitute a protected disclosure? No Public interest requirement in Ireland (UK law different) Definitions of relevant wrongdoing DPER Guidance as part of the screening process analyse whether it is necessary to separate complaints Encouraging the discloser to use other procedures

13 Anonymous Complaints Distinction between an anonymous disclosure (where identity is withheld by the discloser) and confidential disclosures (where identity is protected by the recipient) Not specifically excluded by the 2014 Act Investigate to the extent possible DPER Procedures : may be difficult or impossible to investigate

14 Reasonable Belief No definition of reasonable belief in the 2014 Act. UK Court of Appeal in Babula v Waltham Forest College [2007] IRLR 346: There must be a subjective belief on the part of the worker and that belief must also be objectively reasonable.

15 Protection of Identity Every person to whom a protected disclosure is made, or referred, shall not disclose information that might identify the person who has made the protected disclosure except where Took reasonable steps to avoid disclosing Reasonably believes: No objection (consent) Necessary for the effective investigation of the wrongdoing Risk to security of the State/public health/public safety/environment Prevention of crime/prosecution of a criminal offence Otherwise necessary in the public interest/required by law OR

16 Other Protections provided in Protected Disclosures Act Act provides statutory protection for employees / workers (as appropriate) who make protected disclosures, including potential claims: For unfair dismissal (award of 5 years gross remuneration & potential interim relief application) For penalisation For certain forms of detriment (similar to penalisation) Where discloser s identity is not protected (subject to exceptions) Workers also have certain civil and criminal immunities in respect of protected disclosures.

17 Penalisation & Section 3 of the 2014 Act Penalisation means any act or omission that affects a worker to the worker s detriment, and in particular includes suspension, lay-off, dismissal, demotion, loss of opportunity for promotion, transfer of duties, change of location of place of work, reduction in wages or change in working hours, the imposition or administering of any discipline, reprimand or other penalty (including financial penalty), unfair treatment, coercion, intimidation, harassment, discrimination, disadvantage, injury, damage, loss and threat of reprisal.

18 Investigations Only obliquely referred to in the 2014 Act Obligation on public sector employers to establish and maintain procedures for making disclosures SI 464 refers to initial assessments and investigations ( the form and scope of which will depend on the subject matter of the disclosure) DPER Guidance- the incorporation of a detailed and prescriptive investigation process in the procedure may impede the public body s ability to respond flexibly and in a responsive way to disclosures of wrongdoing. Specific timeframes may also create a difficulty

19 Feedback to Disclosers No information should be provided that could prejudice the outcome of an investigation No right to know if Mr/Ms. X was disciplined General feedback to assure the discloser that the issue is being considered Confidentiality Risk of not keeping a worker informed

20 Reviews DPER Guidance Provides for a review system By a person who has not been involved No entitlement to two reviews Review of Any decision to disclose identity Outcome of assessment/investigation of protected disclosure Outcome of assessment/investigation of penalisation

21 2017 Review of Protected Disclosures Act 2014 DPER requested submissions. These are on their website Paraphrased below are some of the issues raised in the feedback.these include: Lack of clarity as to what constitutes a PD Interface with existing sectoral legislation and also with the FOI and DP legislation Rights of employees who are the subject of the disclosure

22 Continued Need for tests in relation to Public Interest and/or good faith Issues in relation to personal employment complaints and access to the WRC Concepts of materiality,also definitions of gross mismanagement/gross negligence Issues in relation to multiple disclosures/disclosures made to multiple persons /withdrawal of disclosures

23 Continued Lack of legal authority/right of recipient to investigate Section 5.(5) Duty to detect wrongdoingpossible implications for persons with a remit to investigate including auditors/gardai PDs which are the subject of other processes including courts, WRC Clarity on steps required to bringing a PD to a conclusion

24 Continued Managing expectations of the discloser Roles of prescribed persons 6 months time limit for issuing a claim for penalisation Disclosures submitted by public reps, legal advisers, Staff organisations/associations

25 Challenges -for the Health Sector Size of the sector Diversity of services and workers Two sets of legislation-issues re funded bodies Resource implications-training of managers/recipients, legal costs, costs of investigations, reviews, time. Historical cases Cost of getting it wrong-confidence/reputation/ legal

26 The HSE in Context

27 Health Services in Context Total HSE Expenditure in 2016 was (bn) HSE provided funding of 3.782(bn) to non-statutory agencies to deliver health, personal and social services Over 2,300 agencies were funded with over 4,300 separate funding arrangements in place Current Staffing level = 107,085 WTEs (>128,000 people)

28 Protected Disclosures Current Position Two legislative provisions: By amendment to Health Act 2004 Disclosures made under the Health Acts must be made to the Authorised Person and these are dealt with in line with procedures and practice established in 2009 Protected Disclosure Act 2014 Disclosures under the 2014 Act can be made to a range of persons including managers within the HSE, relevant Government Ministers, prescribed persons in relevant organisations, legal advisers and other external persons. Provision is made for verbal and also anonymous disclosures.

29 Relevant Guidance Protected Disclosures Act 2014 DPER Guidance to assist public bodies in their statutory obligation to establish and maintain procedures. Part 9A of the Health Act 2004 Difficulties engendered by two regimes which are similar in some respects, but different in many other respects Focus on the 2014 Act

30 Examples of differences 2004 Act 2014 Act Disclosures by employees of the HSE/ section 38/39 bodies Procedure prescribed Disclosure in good faith and reasonable grounds for believing that the information will show. Health and welfare No requirement for the wrongdoing to come to the attention of the employee in connection with his employment No provision for retrospectivity Disclosures by workers No procedure prescribed Disclosure of relevant information which in the worker s reasonable belief tends to show a relevant wrongdoing and which came to the worker s attention in connection with her employment Health and safety Must come to the attention of the worker in connection with his employment Retrospective disclosures made before 15 July 2014 may be protected

31 Actions required in dealing with disclosures In general terms these include actions/responsibilities related to: a) Receipt of the disclosure (protection of identity, response to the discloser) b) Initial screening to determine whether the concerns raised appear to fit within the framework for Protected Disclosures c) Referral to the relevant senior manager. This manager to decide on the appropriate action to be taken in relation to the Disclosure. This may include the designation of a commissioning manager in relation to an examination/investigation of the PD and also of a liaison person to communicate with the discloser and with the PD office. d) Examination/Investigation of concerns outlined in the disclosure and/or engagement with the framework of appropriate IR/HR policies e) Response and final report to the senior manager. f) Assurance provided in relation to actions taken to address the PD. g) Data collection and input as required. The DPER Guidance also provides for 3 sets of reviews at different stages in this process

32 Some Key Steps Associated With This The dissemination of information in relation to Protected Disclosures Identification of recipients and their related duties Identification of commissioning managers and their related duties Principles of fair and objective investigations Actions required to deal with the outcome of investigations Provision for monitoring and assurance and responsibility for same Provision for dealing with claims of penalisation

33 Number of Disclosures Section 22 of the Protected Disclosures Act 2014 requires (1) Every public body shall prepare and publish not later than 30 June in each year a report in relation to the immediately preceding year in a form which does not enable the identification of the persons involved containing information relating to the matters specified in subsection (2). (2) Those matters are (a) the number of protected disclosures made to the public body, (b) the action (if any) taken in response to those protected disclosures, and (c) such other information relating to those protected disclosures and the action taken as may be requested by the Minister from time to time No of Disclosures Received No of Disclosures Received No of Disclosures Received

34 Thank You Any Questions?