Protected Disclosures Code of Practice – some helpful guidance

by Bryan Dunne, partner and head of the Employment Practice at Matheson

On 28 October 2015 a new SI was implemented, the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 (the “Code of Practice”). The aim of this draft Code of Practice is to help employers, workers and their representatives better understand the law in relation to protected disclosures, and to give guidance on how best to deal with the issue of protected disclosures within the workplace.

There is a strong emphasis throughout the Code of Practice on trying to keep protected disclosures within the workplace, and minimising the need to make it through an external channel, as provided for under the Protected Disclosures Act 2014 (the “2014 Act”).

The Code of Practice provides useful guidance on what a whistleblowing policy should include.

Why have a Whistleblowing Policy?

• The Code of Practice recognises that by having a whistleblowing policy in place, it ensures workers that there is a safe and confidential system within which they can make a protected disclosure. If a worker is not aware of how to make a protected disclosure, or is concerned that they could be penalised for doing so, they are more inclined to look to external channels.
• It also allows employers an opportunity to address the disclosure / issues raised at the earliest opportunity, or where the discloser is mistaken or unaware of all the facts surrounding the issues raised, to take the opportunity to assure the worker that his or her concerns are unfounded.
• Most importantly it ensures that all parties clearly understand that there is a safe and confidential mechanism in place to deal with protected disclosures.

What is the difference between a Grievance and a Protected Disclosure?

The Code of Practice recognises a very common misunderstanding in distinguishing the difference between a protected disclosure, which is covered by the 2014 Act and a grievance, which does not come within it. It explains that a protected disclosure is where a worker has information about a relevant wrongdoing as defined in the legislation which may or may not be specific to the employee concerned. A grievance on the other hand is specific to the employee’s work; for example an issue concerning overtime is a matter better dealt with under the company’s grievance procedure. It is important therefore, that the policy clearly highlights this difference, and makes it clear that a grievance should be raised separately under the company’s grievance or dignity at work policy, where applicable.

Can a disclosure be made anonymously?

As we all know the 2014 Act allows for a protected disclosure to be made on a confidential and anonymous basis. However, in an employment related dispute it is well recognised that fair procedures require the employee to know the identity of their accuser as part of any investigation against them. Thankfully the Code of Practice recognises this concern and how it may present a barrier to any internal investigation. However, it only goes so far as explaining that the focus of a protected disclosure should be on the actual wrong and not on the person actually making the disclosure, which unfortunately fails to give adequate clarity on the point. Therefore, employers will continue to face difficulties whenever an employee avails of their right to anonymity, when making a protected disclosure, in accordance with the 2014 Act.

What should be included in a Whistleblowing Policy?

The Code of Practice recommends that a whistleblowing policy should:

• make it clear that the organisation / employer is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner;
• make workers feel comfortable and confident about reporting wrongdoings;
• distinguish the difference between a grievance and whistleblowing policy, highlighting what other appropriate procedures exist to address employee grievances;
• make it clear that the company will not tolerate penalisation of workers who make a protected disclosure in accordance with the policy;
• highlight that the company is committed to dealing with the matter in a confidential and timely matter to the extent possible, and keeping the worker who has made the disclosure updated throughout the entire process as appropriate;
• specify to whom the policy applies;
• give guidance on the type of wrongdoings that come within the policy;
• set out the reporting structure in place. Larger organisations may have a designated officer in place, otherwise this can be to a suitable manager, thereafter moving up the hierarchy as deemed appropriate. This will also include details around external disclosures, and it should also highlight that where a worker is employed by a public body there may be certain instances where a protected disclosure can be made to the appropriate Minister; and
• highlight that all disclosures are made on a confidential and anonymous basis, and that a worker cannot be penalised and / or dismissed for making a protected disclosure.

Conclusion

The Code of Practice provides a useful summary of the 2014 Act and provides some helpful guidelines for employers and organisations on what is necessary for an effective whistleblowing policy. The policy should make workers aware of the ability to make a protected disclosure, and ensuring him or her that there are specific safeguards in place in order to ensure their protection and anonymity. This is essential in underpinning a culture of open and safe disclosure, and helps to encourage that disclosures are made within the workplace, rather than being made externally.

This article was first published as part of Matheson’s Employment Law newsletter, 11 December 2015.

About the author.
Bryan Dunne is a partner and head of the Employment Practice at Matheson. He advises on a variety of aspects of employment law, both contentious and non-contentious. This work includes preparation of senior executive service agreements and severance arrangements for international employers, defence work in contentious employment litigation matters and advising on all employment aspects of commercial transactions. He also regularly advises employers on internal grievance and disciplinary processes, with particular focus on senior executive level employees.