Whistleblowing in the Workplace

8 April 2014

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Whistleblowing in the Workplace

Chair

Ian O’Herlihy,

Head of Employment & Benefits

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Whistleblowing The Proposed Legislative Framework

Elizabeth Ryan,

Partner

e: eryan@mhc.ie

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Position Pre-Act

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Position Post-Act

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Title

• Position in the Market

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Penalisation

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Potential Difficulties

Next Steps

• Matters which constitute a protected disclosure

• The manner in which workers are protected

• The investigation procedure (could contain a formal or

informal step)

• The procedure for raising a concern externally

• Request for anonymity

• Link to disciplinary procedure

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Whistleblowers and Data Protection

Jeanne Kelly,

Partner

e: jkelly@mhc.ie

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The Data Protection Angle

• Why is this controversial at all?

• Subject access rights (she said WHAT about me?!)

• Fairness in data collection (Data Protection Acts)

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The Data Protection Angle

• Whistleblowing not new

• Sarbanes-Oxley Act (US) 2002

• Dodd-Frank Wall Street Reform and Consumer

Protection Act 2010 (incentives!)

• Our experience: how does it become an Irish

compliance issue?

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Whistleblowing Hotlines

EU/US tension in approach

And: No EU passporting possible

Do you seek forgiveness, or ask permission?!

CNIL France 2005

McDonalds France +Exide Tech

2009 Dassaut Systemes

Germany?(Wal-Mart)

Sweden? (Key execs only)

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Data Protection Issues

Article 29 Working Party: who are they and what solutions had they?

WP 117

• Whether w/b hotlines can co-exist with DP laws?

• Focus on financial issues/crimes

• Transfers abroad

• Fair processing

• Proportionality

• Consequences for the data subject

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Data Protection Issues

WP 117

• Privacy by design

• Limits: who can use, who can be reported

• If no evidence, destroy data after 2 months

• If wrongdoing uncovered, keep data until end of resulting process

• Regulator clearance may be needed

• Secure processing transfer contracts

• Local filtration

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Data Protection Issues

Irish Data Protection Commissioner Guidance (March 2006)

Focus on Issues not Individuals

• Consider the DP implications

• Data minimisation approach

• No encouragement of anonymous whistleblowing

• Tell your employees

• Anti-blowback measures

• Transfers abroad

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The Protected Disclosures Bill and Data Protection

• Does it cut through the data privacy issues?

• Not a defence to a DP breach to say complied with the

new Bill.

• What happens if whistle-blower identity is revealed?

(Section 16)

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Takeaways

• S.21 Public bodies must design schemes to deal.

• Those schemes must still be DP complaint.

• You may need to re-calibrate your existing DP documents

• If outsourcing, robust contracts needed.

• Approach in a “privacy by design” and “HR compliance by design”

manner

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Dealing with a Whistleblowing Investigation by a Third Party

Catherine Allen,

Partner

e: callen@mhc.ie

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Why will Third Parties be Involved?

• Section 7 of the Protected Disclosures Bill

• Prescribed persons:

• An Garda Síochána;

• Office of the Director of Corporate Enforcement;

• Health and Safety Authority;

• Health Information and Quality Authority;

• National Consumer Agency…?

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Why will Third Parties be Involved?

• Section 19 of the Criminal Justice Act 2011

• Mandatory reporting for certain types of offences

• Applies to everyone

• No express defence of legal professional privilege

• Awaiting Law Society Guidance

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Third Party Investigations

• May be happy to rely on an internal investigation pending

developments

• Preservation of evidence

• Witness interviews – privilege against self-incrimination

• Separate legal representation may be necessary

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Third Party Investigations

• External investigation

• May have to be dealt with in a similar fashion to a dawn raid

• Expensive and lengthy process.

• Investigators have to produce a:

• Coherent,

• Accessible, and

• Traceable record of the files of and interactions between suspects.

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BCCI Investigation

• Largest bank fraud in history (over 3,000 criminal customers, money

laundering, terrorist financing etc)

• 100 million documents found in London

• 9,000 boxes containing several million pages of documents (some

handwritten notes in various Arabic dialects) found in New York and

Miami

• Even more documents in the Grand Cayman Islands

• And … most of the documentation had in fact been shredded,

destroyed or removed from the bank’s head office in London and

flown to Abu Dhabi in 1990.

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Corporate Criminal Liability

• Absolute / strict liability offences

• Identification doctrine

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Takeaways

• Be aware of your section 19 CJA 2011 obligations

• Have a process for making section 19 reports

• Have a process for dealing with:

• internal investigations that may lead to criminal prosecutions; and

• external investigations (similar to dawn raid processes)

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Q & A

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Elizabeth Ryan,

Partner

e: eryan@mhc.ie

Catherine Allen,

Partner

e: callen@mhc.ie

Jeanne Kelly,

Partner

e: jkelly@mhc.ie