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The Art of Investigating Whistleblowing Claims in Ireland

Posted in : Webinar Recordings on 4 April 2019

Investigating complaints of protected disclosures (whistleblowing) are trickier and riskier than ‘ordinary’ workplace investigations. They use many of the same skills but there are several potential traps, such as those concerning the anonymity of the whistleblower, and the cost of getting it wrong could be sizeable – an award of up to five years’ remuneration for the detriment of dismissal. And that’s before we start on the damaging publicity that could result from a whistleblowing claim. In certain regulated sectors, employees are required by law to blow the whistle on wrong-doing in their employment.

Liam Ennis is an expert in whistleblowing and their investigation.

In this webinar recording, Liam discusses what makes investigating protected disclosures so dangerous and how you might minimise the risks to you, your employees and your organisation.

Transcript

Scott: Good morning. It's Scott Alexander here. I'm from Legal-Island, and our guest today is Liam Ennis. He's the founder and director of The Debrief Group, an organisation focused on the delivery of professional and transparent investigations. He's originally from Rosslare, CountyWexford, but he has 30 years policing experience investigating some of the most complex and serious of crimes. As a detective superintendent, his skills and expertise in this field have been recognised and commended by national and international law enforcement agencies, including the FBI, the PSNI and of course, our own An Garda Síochána.

Liam understands the real difficulties and fears victims and whistleblowers face when speaking out against wrongdoing. He's passionate in ensuring those charged with investigating such wrongdoings have the necessary skills and processes in place to conduct impartial and professional investigations. He recognises the real difficulty faced by the organisations as well in dealing with this complex and difficult area of business.

Liam developed the only course recognised in UK whistleblowing initiative investigative management training course. And it's been endorsed and accredited by the Trainings Qualification UK.

Now if you're listening for the first time to one of these webinars, you'll see there's a little chat box. If you want to ask any questions of me, you can fire them in and we will deal with those live. I have a series of questions. We're not going to stick rigidly to the ones on your screen. But we will be going through quite a number of those. You've logged on, obviously, but you can also listen back to this webinar in the afternoon. If you go onto the website and just search for it, it'll be one of the first items up.

And if you want to contact Liam, you'll see his contact details at the end, liamennis@thedebriefgroup.co.uk. Okay, so we have a number of questions here, Liam, and I think just to start off, I think it's fair to say that whistleblowing investigations include all the basic ones and basic skills that our listeners would expect to have, if you like, when they're investigating grievances and complaints and normal workplace issues. But this is kind of grievance plus. There's a lot more things to it than that.

Liam: There is indeed. Yeah. I think whistleblowing investigations, in essence, are inherently more complex than routine internal investigations in that a number of the issues in whistleblowing investigations are stipulated in law. There's the eight issues and I don't intend to go over them all. We wouldn't have the time. But it does place a manager responsibility on that public companies to have a whistleblowing policy in place.

And that whistleblowing policy uniquely in the Republic of Ireland is governed by a code of practice. And that code, if you step outside - in my experience, if you step outside any codes of practice while doing an investigation, your investigation will fall. And I believe that to do this whistleblowing investigation, you must have certain set of skills. You must be able to manage and retain and analyse anonymous information. You should be able to conduct your investigations based on anonymous information. You should be able to safeguard the whistleblower, and when necessary, you should have information sharing protocols with regulatory bodies. So if you do that information into your department or into your company, you should be able to share it to minimise the risk to the whistleblower and indeed the community.

And the other thing, I would like to say at the start that your investigations have to have some form of process, and they have to be able to withstand an independent judicial review. So yeah, I am . . .

The Whistleblowing Process – 5 stages

Scott: So take us through the process first and then we can have a look at risk assessment.

Liam: Well, the process is very simple. You've got five stages. Stage one is an initial report. So this is where the company or organisation receives an initial report of a whistleblowing allegation.

Stage two is where you have a first contact. You speak to the whistleblower, or you make a decision not to speak to the whistleblower, either/or.

Stage three is a scoping. So stage three is when you speak to the whistleblower, and you get enough information that will allow your organisation to make an informed decision as to the veracity or otherwise of the allegation made.

Stage four then is your investigation. It's your actual investigation. Who's going to lead the investigation? Who's going to be an investigative team? What are your aims and objectives are? Where do you want it to go? How much is it going to cost? How is it going to impact your organisation, etc.?

And then stage five, excuse me, is your closure. So how do we close it off? Did it go to court? Is there any learning in it? What's the review processes of it? How are we going to implement any changes that we need to do? What's the learning from it? Does the rest of the organisation need to know what's happened and how are we going to improve it in the future?

Scott: To some extent then that comes down to organisational culture about supporting whistleblowing complaints and encouraging them, or, you know, almost paying lip service to it. So some of that's the cultural thing. But the bottom line is if you've been hit by a whistleblowing allegation, and there's been quite a few in Ireland over the years that are hitting the press, if you've been hit by that kind of thing, then it's almost implicit at the end of it, you're going to end up having to take it seriously and almost encourage it. So you're going to have to be much more open and transparent to try and weed out any wrongdoing, I suppose.

Liam: Yeah, absolutely. I mean if an individual is brave enough to make an allegation, and it's a true allegation, they are straightaway telling tales on the people with whom they work. They're putting themselves out there. And if they're willing to actually stand up and give evidence about it, then they're putting themselves and their family out there. So they're making a huge step forward against what is not the natural thing to do. So invariably, they're going to be vulnerable. They're going to be under a huge amount of pressure. They may be suffering some financial loss. There may be all sorts of things that you as the investigator are going to have to manage that whistleblower and, at the same time, recognise the risks that they're under but manage the rest of your employees, your organisation, and indeed the people conducting the investigation.

So in my opinion, each of the stages that I mentioned earlier on, you simply risk assess each stage, you identify the risks. For example . . . sorry.

Whistleblowing and Risk Assessment

Scott: Yeah. Take us to take us through your sample, if you like, or a template risk assessment form. So take us through a few of the kind of things that you'd have to do here. And in particular, so if listeners are thinking about this, some of these things you might not think about when it comes to an ordinary grievance complaint where Scott complains or doesn't get on with Liam. So if this is whistleblowing, what are the kind of things that come up when you're risk-assessing?

Liam: Well, for each stage, I think, as a minimum, there's a number of things. You should look at your commercial concerns, so you're private and public sector organisations, so you have to protect your organisation. So your commercial concerns. Then you could look at, for argument's sake, the community concerns. How is this going to impact our community? That's just for starters.

Then I think if you go to your actual risks, your physical risks. Is there a physical risk to the whistleblower? Is there a physical risk to the people carrying out the investigation? Is there a physical risk to our employees if we don't do this? Is it a health and safety matter? What are the legal risks? Is this, in fact, a whistleblowing complaint? How do we manage that? Do we have the right to do it? There are economic risks, where does that go?

If this is a poor investigation, are we going to get sued? Is there a detriment? Are we manufacturing something that's not fit for purpose? Are we cutting corners when we're building something that's not fit for purpose? Are we going to be sued? So you've got to identify that. And you've got moral risks. Where's the moral obligation on this company to do this and how are we going to manage that?

And there's the psychological risks, just to mention a few. So what are the psychological risks on the whistleblower, on their family, on the employees? What about the individual who's been complained against? If it's a vexatious complaint, what about the physical risk to him or her? So all of these matters have to be identified risk assessed.

Whistleblowing and Vexatious Claims

Scott: You know, just to maybe interrupt you there, Liam. We've got a question through the chat box that are just about vexatious or untrue complaints. What are the obligations on the organisation if one of those comes through, that Liam complains about Scott, and blows the whistle on me, but it's untrue? What would be the obligations on the organisation?

Liam: That's a great question. And it goes to the fact of, if the allegation is made, you have to investigate it thoroughly, professionally. If it's found that this is a vexatious allegation against another individual, then you may have grievance policies in place to deal with that. If the allegation is of such a nature that it's completely wrong, such as criminality, then you could, in theory, you could be saying that this person is wasting my time if it's been reported to the police. There's a number, it's a great question and that it goes to the heart that you must look at the whole, the totality of the allegation and the individual.

So at each stage, you have to risk assess to say, "Where are we? Where are we going? Is this actually true? Can we corroborate it? If not, why not?" And if we're going to stop the investigation and say to the individual, "We don't believe you because your allegation is false," and then go to the individual for whom the complaint was made against, because he or she will be in a bad place as well. They could be stressed, especially if the allegation is not true. And you have to have cognisance of how you're going to rectify that situation and put in place things to make sure it can't happen again.

Scott: Yeah, and there are I suppose reporting requirements in Ireland as well. But you would report back how many complaints you've whether they're upheld and not upheld as well, wouldn't you?

Liam: Yeah, you have to report back. At the end of the year, the designated person reports back the number of allegations of whistleblowing protective disclosure and allegations and investigations that they've done. You don't identify the individual, obviously, who's made the complaint but yes, you have to record that, and that it has to be reported back.


What if the whistleblower is anonymous? How does that restrict the investigation?

Scott: Yeah. Then a couple of questions coming through the chat box there, and they anticipate a few questions we're going to deal with anyway. Well, let's raise them now. What if the whistleblower is anonymous? How does that restrict the investigation?

Liam: That's another great question in that normally, people don't have the skill base to investigate an anonymous complaint. What you need to do, an anonymous complaint is, first of all, measure it in saying, is this believable? And if so how can we get independent clarification or corroboration of the complaint? So we go back to the example you and I spoke about earlier on.

If it's an individual in an office who's maybe inappropriately touching other members of staff and one person comes forward with an allegation but they don't wish to be known. You should have procedures in place where all of these allegations are recorded. So if a further allegation is made, you can say, "Well, it's been four or five of these similar allegations in the past," which would add credence to the fact that this is true. You then may wish to take a step to how do you prove it. You may have to go instead of going straight to the individual to ask, you may have to put other things in place. You may have to speak to all the victims who have made allegations in the past and ask if any of them would like to be visited.

And if not, you may have to put in something to deter it, but you would? Like cameras, but there's a lot of ways you can do an investigation without having to go back to the individual and force them to stand up front and centre. You have to think of ways to get to the same place using different methods and methodologies. And that's one of the most difficult things to do. You also have to maintain the anonymity of the person and find some way to keep all that material safe, so that it can be corroborated at a later date.

Scott: Yeah, so I suppose that I mean that one of the problems of whistleblowing is that you can have two types of anonymity. You can have one where somebody just puts in a letter to their - could be their employer, it could be any organisation. You have no idea where it's come from. That's completely anonymous, and that's difficult to work out the bona fides and the veracity of that one. And you have the other type where you've got this individual who has a right to be protected and to have their anonymity protected.

But that brings it with the problems because you have a constitutional right to due process in Ireland. And so you have the person who is being accused of wrong doing here, who says, "But I want to know who's doing this. How can I protect myself? How can I put forward a case when I don't know who's coming forward?" And that that's a difficult one to balance.

Liam: That's where your investigative skills come in. And there is a difficult one to balance. First and foremost, if the individual who makes the allegation is anonymous and you don't know who it is, they'll remain anonymous, unless you can see that there's an email address coming in and you wish to go back to it.

So if on the other hand the person has come forward and said, "My name is Liam Ennis. I wish to make a complaint. But I don't want anybody to know who it's me," then you can't guarantee that and you shouldn't even think about guaranteeing it. Because if it goes to any tribunal or court of law, the only people who can grant anonymity is a court of law, and it's not within your gift. So you should be telling the person straight up at the start, we cannot guarantee your anonymity. And if the tribunal or a court of law wishes to tell everybody who you are, that's where it's going to go. So be prepared. And that's part of the very first meeting with the individual—make these things clear at the very start. So people know where you are.

Scott: So you can't give an absolute guarantee to the whistleblower, but there is a requirement under the code to go as far as you can in any way to protect that anonymity. So you can just blurt and say, "Oh, Liam, thanks for telling us about Scott. We're now going to go straight to Scott."

Liam: Yeah, well, you shouldn't. The legislation mentions confidentiality, but that's probably risk assessment, isn't it at the very start? Who is this individual? What's the nature of the allegation? Is it such wrong doing that if we make it public, this person is going to be at risk through loss of work? Or is the person whom they're complaining about of such bad character that could pose a physical risk to them? And these are the things that you need to be discussing at the start to see where you're going to go.

Is whistleblowing and protected disclosure the same thing?

Scott: You know, we had another question in there just about is whistleblowing and protected disclosure the same thing, and effectively are. It's just shorthand for the same thing for the same thing. But if somebody blows the whistle, the protection is for employees. This is a work-based thing. It's not that necessarily that if I'm a consumer and go into a shop and complain about the cleanliness to the council, you could argue and very common that's whistleblowing, but I don't have the protections that the Public Interest Disclosure Act gives people. And it gives employees protection.

Liam: It's purely for employees. And it is yes, it is a protected disclosure, and it falls under relevant information. And there's eight issues. I'll go very, very quickly. Eight is, there's an offence that's being committed. It's compliant with legal obligation, miscarriage of justice, health and safety of an individual is at risk. And when I say health and safety, there's some talk in legal circles, that that may include mental health of an individual. Damage to the environment, unproper use of funds or resources, of public money are an active of omission. So any information that would tend to show . . .

Scott: At least one of the above?

Liam: Yeah, so there is quite a lot and I've rushed through it. But yes, it is limited to those particular actions, and it is limited to employees.

Scott: But that's quite wide. I mean, quite a number of those things could just be that you're processing things incorrectly and therefore it becomes a waste of public money.

Liam: Absolutely. Yeah.

Code of Practice for Protected Disclosures

Scott: Okay. We'll take another question in a moment. Just moving on. What about this code and the importance of the code? Let's go through one or two other the issues there about what kind of guidance might that give you?

Liam: The code of practice that attends the protective disclosures, that is basically says it's mandatory for all public bodies to have a whistleblowing policies and it highlights that all employers should have, and your policy covers everything from what happens, what the person's rights are, and how you're going to manage it. It also states that any of the investigation should be conducted using objective and fair principles with regard to natural justice. So really, that's part of the constitution.

And it also says that there's a value if relevant staff, a designated officer or senior managers being trained in the operation of the policy and how to handle concerns. And my reading of that it is that you put a policy in place and you put some senior manager in place to manage it to ensure that your investigations are done correctly, and that that person is responsible for all disclosures and how they are managed.

Scott: Okay, so we'll come back to that senior thing and various things. Another little question. I don't know if it's your area right enough. But it's where somebody puts in a whistleblowing investigation during another process, say a disciplinary. And are they then protected from actions by the employer, because they've put forward the whistleblowing complaint? Or is that I suppose part your risk assessment about whether it's genuine or not?

Liam: That's a damn good question too. And I would say that a normal grievance investigation shouldn't inform -well, may inform a whistleblowing or a protected disclosure investigation. However, the opposite should not occur. So if it's a protected disclosure investigation, that shouldn't really be mentioned in a grievance, because the confidentiality issues and because it's structured. If a person then suffers a detriment because of that, that would be a matter for a tribunal.

Scott: Or the adjudication service in Ireland or the labour court. Yeah. You run various workshops, and we're not here to give an ad for your workshop. But if anyone does, they can get in touch with Liam. You've got his details. But you cover media and external communications as part of that process. So why is it so important when it comes to whistleblowing?

Whistleblowing and External Communications

Liam: I think there's a real basic and if you look at the history of whistleblowing investigations locally, or certainly nationally that the public have a right to know precisely what's going on with these as the employees do. So, therefore, if there is a whistleblowing investigation that is in the public domain, there should be somebody standing front and centre to let the public know what's going on. And the person who's doing that must have a knowledge of the investigation process, must have a knowledge of where their process is and where the risk lies, so they can be careful of what they kind of can and can't say, and that they must be able to ensure that the investigation is in line with the law. But it's also in line with the strategic aims of the organisation whom they represent and the public whom they represent as well. So there has to be someone with oversight, and with responsibility, and with the kudos to be able to stand up and answer the questions to the media should it become public knowledge.

Scott: Well, the difficulty is that nowadays in particular with social media so big, it's not really acceptable I don't think for the public to hear public representatives stand up and say, "No comment, there's an ongoing investigation." That just won't work anymore.

Liam: No, but you have to be able to, well, if it's a covert investigation, you're not going to give the public, or you're not going to let out the fact that it is a covert investigation ongoing. For argument's sake, if there was a risk in a care home, and you were taking step covertly to try and manage that risk, you're not going to tell the world you're doing that, because then the perpetrators would know that you're doing it.

On the other hand, the public have a right to know precisely where you're going, and how long is the investigation going to take? How much of this is going to cost? What are the likely outcomes? They're relevant questions. What I would say, in regard to social media, is that any investigators involved in these, any persons involved in these investigations should at the outset, in my opinion, have to sign an agreement whereby they will not discuss it with anybody other the investigation team, and will most certainly not put anything on social media.


If you get an anonymous letter, would you be able to get it analysed by some kind of handwriting expert?

Scott: Okay, we're going to just break. We've just done a broadcast for those that are listening for our listeners in Northern Ireland about half an hour ago or so. So we're flipping backwards and forwards, but we got no questions from those in the north, and we're getting loads in from Ireland. So one of them is here, "If you get an anonymous letter, would you be able to get it analysed by some kind of handwriting expert?" or something like that.

Liam: Yeah, you can do all of that. But I will ask why. And it depends on the content of the anonymous letter. Yes, you can. And I suppose forensically speaking, where you have to find the other pad where the anonymous letter was written, you could connect to what that's called is, the testing. But I would really have to ask, why would you want to try and identify an anonymous person using that method, unless the letter contains something that's really serious, and that the anonymous person themselves you think is maybe the perpetrator or suspect? But if it was that serious, I'd be tempted to think law enforcement to be brutally honest.


What is the role of the Chief Executive in the whistleblowing process?

Scott: Okay. You mentioned the senior executive and the social media aspect, and so on, but just going back to that there, why is it so important? Is it that you can set out anywhere that you have a senior person dealing with the investigation? And if you have a senior person who's dealing with the investigation, what about the chief executive who's unlikely to be carrying out that investigation themselves? What's their brief? Is that watching brief? Or do they get involved? Are they kept out of the loop because it might contaminate? What's the process for senior executives?

Liam: Well, within each organisation, if there's a designated person to manage the disclosures, it's that individual's role to oversee it and to write a policy. I would say with included in your policy should be something to say if there's a complaint made against the CEO or senior executive, how that's going to be managed. And if that's going to have to be done very discreetly, and possibly covertly. So that's part of the policy writing and it should be within the policy. What happens if a complaint is made against the CEO? Who's going to own that? And who's going to investigate it that, that should be there already.

Scott: So you'd have this whistleblowing person, the designated person.

Liam: Yes.

Scott: And in fact, they're independent, And they would say, "No, this is a whistleblowing investigation. I'm not going to tell you. Or I am going to tell you"? Is that the kind of person that you should have?

Liam: I wouldn't say that they're independent because they're part of the same organisation. So they're not independent, but then it's the integrity and the culture of the organisation, isn't it? So just because you have a senior level within an organisation doesn't give you the right to do wrongdoing against any individual. So if a whistleblowing allegation is made against you, because for argument's sake you're inappropriately spending funds or something, then that needs to be investigated impartially. And that goes back to the culture, because how are you going to give confidence to your average member of staff, if they know that the CEO is walking about spending money and taking flights on the QT, etc., etc.? So it has to be impartial and fair for everybody.

Scott: Okay. We've just gone back to this handwriting one. I think the person that's written in is saying that, you know, they're so serious and could ruin the person professionally, that they're trying to figure out, you know, what do we do with this? Is it true or not true? But do you go to the guards?

Liam: Well, I think maybe, I was supposed to discuss that one on this public demand. I think if you want to give me anything afterwards, I'll discuss it. But in essence, if the nature of the allegation is so serious, and it's criminal, for argument's sake, then you've got to look at, if it's an allegation, it's that serious, law enforcement should be informed of it. Bearing in mind, the forensic, you would have forensic liabilities around this in whose handled the letter etc., etc., but it will be far better off if you want to discuss it after the webinar. But if it's that serious, pass it to law enforcement.

Scott: Okay, so you can drop a line to Liam at The Debrief Group. His email address is coming up towards the end of this process.

Liam: Just on that point, that particular scenario points to the importance of having information, sharing protocols with other agencies. So if you do get something like this in, that you have an ability to pass it to the relevant agency quickly and securely. And that's another aspect of this whole thing.

Scott: So this could be a HSE hospital, then somebody complaining about a doctor, and you've got to be able to share it with some other organisations, potentially.

Liam: Yes, absolutely.

Scott: Okay. Well, we have somebody there just asking is there an independent whistleblowing investigator that you would recommend? I presume that's you, is it?

Liam: Yeah. I would say I could recommend myself. It very much depends, yeah. I believe that may be procurement. It depends on how much money is going to spend. It wouldn't be right for me, but then I don't think I could answer that question.

Scott: Okay. Don't answer that. You can contact Liam, if you want to. There are a lot of other questions coming in. But I want to get through to the one here that you've got here. Your own workshop provides structure that's recognised in the court, certainly in the UK?

Liam: Yeah.

Scott: For both criminal and civil courts.

Liam: Yeah.

Scott: And you mentioned to me earlier that there's an issue that's coming up in the UK Supreme Court.

Liam: Yes.

Scott: Have you got any background to that?

Liam: Well, I can't reference that particular case, because it's still ongoing, but it is a whistleblowing allegation that goes back to a criminal matter some time ago, and it was very serious criminal matter, but it came from whistleblowing. Basically, the course that I would teach is based on the investigation methods and methodologies used to debrief people involved in serious crime, and they're blowing the whistle on their criminal associates.

And an example would be the Rhys Jones, the young boy that was murdered in Liverpool and supergrasses etc. But basically, what I've done is I've taken those methodologies and skills and put them into this course, which, it's not as serious obviously, and it's dropped down a level. But it gives you the same processes that are recognised in court, and they do work, they will protect the whistleblower, they will protect the investigation team, and they show you how to manage incidents such as this where you get intelligence or confidential information in and you think, "Oh, my goodness, what am I going to do with this? What do I have to do with this to get this done?" So we will teach that, yes.

Whistleblowing Interviews

Scott: Okay. We're coming towards the end. We're not quite there of the broadcast today. And I want to move on to a different area slightly where it has tied them number of things here, and that's the interviews themselves. So some things . . . in order to maintain anonymity, you may have to change location. There are various red flags. But what do you do about the conversations about recording them? In particular, what do you do and what do you say to the alleged or the whistleblower if you like, when you leave that meeting? So how do you keep them safe? And how do you manage the process going forward?

Liam: Well, one of the main things then is before your staff or your investigators are asked to go and speak to a whistleblower, you should have already worked out who he or she is, what the nature of the allegation is. Are they married or they're single? Do they have any red flags? Have they history, for argument's sake, of mental health issues? You should be aware of some of that before you go out.

Once you get to the individual, you should agree someplace safe, that they feel safe, and you don't want to go in a suit and tie up to their house and knock the door. Are the family aware of it? Before you start speaking to them at all, tell them who you are. Confirm with the individual that you don't know - there should be no one involved in the investigation who knows the suspect, for want of a better word, and the complainant. They should be impartial for that. And you should always before you start, tell an individual, have no threats, no inducements and no promises and agree someplace else to meet them after that. That is as concise as I can put it.

Scott: Okay, thank you very much to Liam Ennis here. I'm afraid we're at the end of the broadcast. You can see Liam's details there if you want to give him a call. Or if you want to drop them a line, you can follow up with him. Our next webinar is on Tuesday at 3 o'clock. It has to do with the Miscellaneous Provisions Act, or the Employment Miscellaneous Provisions Act. And has to do with various types of atypical contracts and zero hours and all that kind of stuff. So if you want to listen in to that, you go on to the website, go into events, and you'll see it.

This article is correct at 04/04/2019
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.