An Audience with RDJ - September 2021

Posted in : Webinar Recordings on 17 September 2021
David McCarroll
Ronan Daly Jermyn
Issues covered: Sectoral Employment Orders; Protected Disclousures; Whistleblowing; Proof of Covid-19 Vaccination

In this brand new bi-monthly feature from Legal Island and Ronan Daly Jermyn, we discuss key employment law developments with the Partners in RDJ’s Employment Team, including the effervescent Jennifer Cashman and her equally lively colleagues David McCarroll, Antoinette Vahey and Michelle Ryan.

In this webinar, David McCarroll discusses:

  • The current status of Sectoral Employment Orders
  • Current and proposed employment protections for employees who blow the whistle under current Protected Disclosures law and the EU Directive set to be transposed in to Irish law this year
  • Proof of Covid-19 Vaccination - to what extent, if any, can employers demand Covid vaccination proof to allow an employee to undertake a role

Transcript

Rolanda: Hello, everybody. Good morning and welcome on this quite grey day to our Audience with RDJ. My name is Rolanda. I'm with the Learning and Development Department at Legal-Island, and I'm joined today by David McCarroll. David is a partner in RDJ's employment group, operating from the firm's Galway office. We were just chatting about his beautiful offices there earlier today.

David works primarily in employment. He has over 15 years' experience advising all aspects of employment relations law. He advises a wide range of public and private sector clients on contentious and non-contentious employment matters, including billing harassment grievances, disciplinary investigations, a whole raft, really, of employment disputes, all those good positive things involving employer relations.

He has particular expertise in advising clients from within the healthcare, technology, and education sectors and developed a practical and commercially-aware approach to the range of issues that arise in those specific sectors.

So we're delighted to be joined by David this morning.

David: Thanks, Rolanda.

Rolanda: Today, we are going to be looking at three areas. Hopefully, we'll have time to fit that all in. We're going to look first at Sectoral Employment Orders and then we'll have a quick look at whistleblowing in terms of changes coming in, and finish off with a bit of discussion around vaccination status.

 

Poll Results

Now, before we get to that great conversation, we just have a few questions we want to ask you to get a bit of a feeling for our audience today in terms of where they are in relation to those issues. We've got Katie there in the background, who's going to pop up a poll question. And if you can just note whether yes/no, or respond to that.

So the first question is, "Do you work in an industry that has a Sectoral Employment Order in place?" So yes, no, or you're not sure, because perhaps you're not really sure whether that will apply or not to you. I'll give that few seconds to vote. So far, looking like the majority no, that they don't work . . . I suppose that's not unusual given that there aren't that many Sectoral Employment Orders.

So we'll just close it there, Katie. We just want to show the audience the results of that. So there you go, 56% of people do not, 34% are not sure, and only 9% of our audience today would work in an organisation or an industry that has a Sectoral Employment Order in place. Would that surprise you?

David: No, but the "not sure" is . . . I suppose we'd like to help them along this morning, because you certainly want to be certain whether you're covered by an SEO or not.

Rolanda: Okay. Thanks, David.

The next question then. It's just about whistleblowing. It's going to pop up. "Does your organisation currently have a whistleblowing policy?" You may call it a public interest disclosure policy. Do you have one of those at the minute? Gosh, we're going great here. It looks like about 75% roughly do have a policy, which is fantastic to hear. Yeah, we'll just stop that one there, Katie. So about 70% roughly of our audience have a whistleblowing policy in place, which is great news, David, isn't it?

David: Yeah, particularly where they're not currently obliged to and they're only highly recommended to. So that shows the great quality of our attendees this morning, Rolanda.

Rolanda: Absolutely, and all the good advice they're getting.

And our final question today then, probably quite an . . . this is potentially a contentious one, to be honest, because it does . . . A lot of debate around this. "Do you personally feel that employees should be required to disclose their vaccination status?" And to respond to that, you're an employee yourself, so what is your feeling on that? So far, looking like the majority of people do believe employees should be required to disclose vaccination status. Yeah, it's pretty much . . . We'll maybe close that one there then, Katie.

So 61% do feel that employees should be required to disclose their vaccination status, and I suppose that shows you the strength of feeling. We were chatting about this earlier in the week. It is quite an emotive subject, and we'll come to that just at the end.

Before we move on just to our first subject, it would be remiss of me not to remind you all of our Annual Review of Employment Law that is coming up soon, and that David's colleague, Jennifer, will be opening and closing our Annual Review. The early bird rate for that ends today at 5:00 p.m. So please, if you are booking a place, book today so that you can avail of that discount.

You can find our website there, and you will get information in the follow-up email to explain to you how to do that. But don't miss out on that up-to-90-euros discount per person, so please book today.

 

Sectoral Employment Orders

Moving on then, our first area we're going to look at this morning is the sort of current status around Sectoral Employment Orders. David, could you maybe just give a wee bit of background to those, where we're at with those? Because there've been quite a lot of . . .

David: There have. So in terms of, I suppose, what they are, especially for those who aren't sure whether they're covered by one, there are certain parts of the labour force that have traditionally benefitted, or recently benefitted, from set terms and conditions. So these are sometimes to do with wage rates, unscheduled increases over a period of time. Sometimes they are to do with hours of work. Sometimes they offer a greater degree of flexibility for employers as well.

And they've evolved over time, and one consistent aspect to them, in terms of type of arrangement, is that they're always challenged legally, and they're challenged on two bases. Firstly, they're challenged as to whether the procedural steps were taken before a Sectoral Employment Order or an employment regulation order, which is a different type of animal, came into being. Was everything done as it should have been done? So the courts can look at that and determine whether or not that was the case. And if it wasn't the case, they'll strike it down, or they'll send it back a few steps.

And the other manner in which they can be challenged is that the very statutory architecture that they sit on, the Industrial Relations (Amendment) Acts that are introduced from time to time, they can be challenged from a constitutional perspective. And that often happens where somebody who doesn't feel they should come within the scope of these mandatory, obligatory set levels of pay in terms of conditions seeks to challenge that from a constitutional perspective in terms of their right to earn a livelihood and their right to property and that kind of thing.

And also, some more grandiose notions about whether or not the Labour Court should constitutionally be a body who's allowed to make those types of orders or whether the minister should be involved. So they've gone through various iterations over time.

At the moment, there's a bit of an alphabet soup, so apologies in advance. There's a bit of an addiction to acronyms in relation to this area. There are things called REAs. They're registered employment agreements, and they happen between an individual company and their trade union. So somebody like Dublin Bus, for example, or Bus Eireann, they have a registered employment agreement. It's registered in a register of registered employment agreements on the Labour Court website. And if there's an issue about it, the Labour Court will determine that issue. So these challenges haven't tended to affect those types of arrangements.

The second type is called Sectoral Employment Orders, SEOs. Now, there are currently two that are binding. The first is called the Mechanical Engineering Building Services Contracting Sector. It's fair to say you'll probably know if you're in that sector and whether you're covered by it. That's been in place since 2018. And the second, and there have been a couple of updated versions, is the Construction SEO, so if you're in the construction sector. The latest one is October 2019. And there's currently a process going through at the moment whereby they're looking at that one again and examining the terms and conditions at the moment.

And in terms of how they work, a union or an employer body fills out an old-fashioned application form, I think under Section 14 of the Act, and they send it into the Labour Court. And within that form, they have to outline that they represent a certain number of either employees or employer organisations within that sector, and the sector is a particular size.

They invite the Labour Court to examine this area in terms of setting terms or conditions, not just in relation to pay but in relation to construction, for example, and mechanical engineering. Also, in relation to pension and sick leave cover entitlements. So they're quite wide ranging.

Once the Labour Court decides, the Labour Court can test that a bit and they can look for evidence as to how big a union or employer body are in that area. But the next step is the Labour Court will decide whether they will look at it. They will advertise in the paper, and they'll give 28 days for people within that sector to submit their views in relation to either an existing SEO, or whether there should be a new SEO.

Ultimately, after the 28 days, the Labour Court puts all that stuff on the website. Anyone can see it. And they then consider the matter and they make recommendations to the minister. And it's at this step, actually, that quite a lot of the litigation has focussed, what the Labour Court is saying to the minister and how much is being said and how much consideration has been given.

And the minister has quite a binary role, actually. They either reject or accept what's recommended to them. I think, actually, it suits ministers to just simply have a yea or a nay role and not to be seeking to develop or change it.

When and if the minister does accept it, it brings the SEO into play by way of a statutory instrument, so it's a law. Under the old system that was constitutionally challenged back, I think, in 2013, that was one of the issues, that it wasn't assessed by the minister and it wasn't brought into play by a law. So in other words, if you could be fined and if you could be ultimately put in jail potentially for not paying some of these rates, that had to be underpinned by a statutory mechanism. So that's there now.

And I suppose in terms of where the challenges have come from, there was an electrical contracting SEO covering electrical contractors. That went through this process, and when it got from the Labour Court to the minister, it was challenged on the basis that the minister wasn't given enough information to allow him to give the yea or nay decision in terms of whether it would be brought into effect.

And there was also a challenge in relation to whether or not . . . some constitutional elements of the challenge as well. That succeeded in the High Court some time back a year or so ago. And then it was appealed to the Supreme Court. Without getting into the detail of it, ultimately, the Supreme Court said, "Look, it is constitutional. The architecture rendered is okay". But they weren't happy that the Labour Court had given enough consideration and had given enough detail of how they considered it to allow the minister to execute his role.

So what they've done is, although an electrical contractor SEO has gone through and has gone from the Labour Court to the minister, and then the High Court essentially set it aside, the Supreme Court has basically put it back to the Labour Court and said, "Do a more thorough job in terms of how you are advising the minister as to how you reach these recommendations and allow them the minister to issue his SEO at that point". So that's where things are at.

Now, it did cause an awful amount of confusion last year and much of this year. This decision was only in July, the Supreme Court decision, I think, in July this year. So it left a lot of people in that sector and left a lot of people covered by SEOs with binding obligations to pay certain rates and to pay increases that were due, for example, in the construction industry, and not knowing whether that would all be pulled asunder in the end. But it hasn't been pulled asunder, and it's still there. So you still have a legal obligation.

And then just for completion, there is another area called an employment regulation order, EROs. I did say there were a lot of acronyms here. And there's another one. There's a thing called a JLC, so a joint Labour Committee, a Labour Court reviews and can be invited to set up a JLC. It's a Joint Labour Committee that will look at a particular sector. So it's a bit more of a narrow focus, and these traditionally . . . There used to be loads of these, but there are few enough of them now in terms of JLCs that have produced actual employment regulation orders. So what happens is a JLC is set up, the JLC draws up proposals, the Labour Court adopts them, and then again it goes to the minister to put in place by way of a statutory instrument. And again, they get challenged periodically as well.

The current situation is that there are existing EROs in place in relation to certain sectors. I think contract cleaning have one in place since 2020. The security sector were looking to bring in . . . they have a JLC, and they brought a draft ERO, an employment regulation order, again setting terms or conditions for that sector. That was recommended to the minister by the Labour Court, and then the minister brought it in by way of a statutory instrument.

And what happened only earlier this year is, again, there's been another legal challenge as to whether or not . . . focussed on the same issue: whether or not the Labour Court gave enough information to the minister to allow the minister to make an informed decision and execute his statutory role properly.

I haven't seen the full details of the pleadings, but I would imagine . . . usually when you're making a cut at the process, you would also have a go with the constitutionality. So it may be that the constitutionality of them is, again, being questioned. But that's only in relation to employment regulation orders.

My hunch, and far be it for me to try and predetermine what a High Court judge or a Supreme Court would say, but there has been a tendency certainly of the Supreme Court, if you look at what they did for the electrical contractors' SEO, and indeed what they did in relation to the WRC in the Zalewski case as to whether the WRC was unconstitutional or not, to fix things rather than throw everything out. So I think it's possibly likely that the court will take a view that, "Look, let's take a step back and get the Labour Court to redo this step and then bring it forward again." That may be how things will operate.

But that's your alphabet soup of you've REAs, registered employment agreements with specific companies, you've SEOs in particular sectors, and then you have JLCs that produce EROs in relation to particular sectors.

And just one thing to note as well as to whether you are or are not covered by these. There are a number of JLCs which have been established or which are under consideration for establishment and they tend to be in areas where union density is not considerable. So there isn't a great union power to drive collective bargaining.

So the minister has asked the Labour Court to establish a JLC for the childcare sector, for example, and has also asked them to look at English-language schools, which you may recall a few years ago quite a number of them fell into difficulty leaving those employees in some degree of difficulty. So they tend to be in those types of areas.

So watch out in terms of that space as to whether your area comes under a JLC and whether you should make contributions to that process.

Rolanda: Thank you very much, David. It's quite a complex system. Lots of different parts. A couple of questions.

Do you have or know of any knowledge of the current status of the construction and engineering SEO in court? What state is that?

David: So the construction, SEO, they have a sectoral-wide agreement in place. They had an initial one, and then it was . . . These things can be reviewed by the Labour Court after 12 months. And so it was reviewed again. They had another one put in.

There was quite a lot of concern about that SEO, and the pay increases that were due around I think this time last year. There was a concern that, "Look, if we get pay increases, and then the whole thing is deemed not to be constitutional, will our competitors then be able to employ people that are lower rate and gain advantage over us?" Which is not the point of the sectoral agreement.

But because the Supreme Court ruled the way they did, the SEO in the construction sector is legally sound. It is not facing a constitutional challenge at the moment. And any pay due on foot of it or increases due on foot of it at the time sit solidly under the legal obligation of the SEO.

I think they just closed a process at the end of July in terms of inviting representations in terms of reviewing it. And reviewing generally means terms or conditions, pay grades, that kind of thing. So that process will take its time. The Labour Court will have to look at that and then make their recommendations. I'd be fairly certain that the Labour Court will give quite a detailed amount of consideration so they don't fall into this difficulty again in terms of the legal challenge.

Rolanda: Question, or maybe more of a statement.

 "My understanding is that was the 2015 Act that was not held unconstitutional, but the SEO itself was."

David: No, the Act itself . . . And again, this goes to a wider issue. And again, there's a bit of an analogy to be drawn with the challenge that was made to the WRC as to whether they should have an out and whether they should be public.

On both cases, what was being challenged was the constitutionality of the Acts that gave rise, in one case, to the sectoral employment agreement and, in the other case, to the WRC as an operating body.

And what you found in both cases is that each division of the court in looking at the matter, they stopped short of just throwing the whole thing out and saying, "It's unconstitutional, and therefore start again". Instead, they said they had difficulties with certain aspects. So, "Rewind, go fix it, and then it can still continue".

So the Act itself has survived, but where the slap on the wrist came was very much in terms of the process and in terms of whether the Labour Court should be doing certain things.

For example, one of the other aspects was there were provisions in the SEO for electrical contracting around pensions, and it essentially said that they wouldn't be any less beneficial than what operates in the construction SEO. And the court took exception with that, that, "Look, you can't be linking it to another SEO in another sector entirely".

So they're rewinding it and telling them to start the process again, but they're not tearing up the whole constitutionality and the architecture around that process, which I think is helpful for employers.

Rolanda: I have to say the Labour Court has come a fair wee bit of pressure in the last year, really, hasn't it?

David: Yeah. To their credit, they produce quite a lot of work and quite a lot of . . . and there are always bodies that are that are seeking to challenge these things.

Rolanda: Yeah. Just a final one in that area before we move on.

Is the electoral sectoral employment order still an Act? So is it still in process?

David: It's been rewound, and the Labour Court are now being asked to re-examine . . . A new division of the Labour Court have been asked to look at it and then make whatever recommendations, and I suppose to beef it out with some detail of what their consideration is on the basis that the minister can then execute a "Yes, I agree, and here's a statutory instrument bringing that into play", or "No, I don't". But they just need to fill out a bit their consideration. That's the concern, but it will likely come into play in time.

The EU Whistleblowing Directive

Rolanda: Okay. We'll move on to the next area just conscious of the time that's passed already. So the . . . I can't remember the name. The EU Whistleblowing Directive is due to be transposed into Irish legislation in December. So what impact will the additional requirements within that directive offer employers in Ireland?

David: It's due to be transposed on 17 December, so not far off. We've a little bit of advantage over a lot of other EU jurisdictions in that we already have a protected Disclosure Act in place since 2014. So even though 17 December isn't that far away, we have the first stage of a legislative process with a general scheme of the bill, which is the first stage, and then it'll go to Committee stage.

And so it's only really adding on elements of the directive and patching that into the Act to update and amend it. And we know what it's going to say because it has to . . . the general rules are there that the wording might change slightly, but it's obviously driven by the directive.

In terms of the changes that will happen, I suppose to guide you through the most important ones . . . And it's great to see how many of our attendees have a whistleblowing policy. But at the moment, the only legal requirement is that a public sector employer has a PD policy. And then there's a code of practice in place that highly recommends that private employers adopt one.

So that's where matters are at the moment, but when the new directive is transposed, certain private entities who work in certain sectors will have to have it, regardless of their size, and they're quite particular. They're in financial services. They're in areas that involve the prevention of money laundering, and terrorist financing, transport, safety, and environmental protection. So if you're operating as a private entity in that sector, regardless of whether you have 400 employees or 2 employees, you will have to have a Protected Disclosure Policy.

And then outside of that, it's a case of it depends how big you are. On 17 December this year, any entity of over 250 employees will have to have one. And then in 2023, there will be a couple of years' lead-in, any entity over 50 employees will have to have one.

But I do think your poll very much reflects what I've seen amongst my own client base, that quite a lot of people have moved to have a Protected Disclosure Policy as a matter of good practice, in any event.

Some of the other changes in terms of who can actually whistle, that's changed as well. So currently, our current legislation covers employees, trainees, contractors, agency staff, those kinds of people who have a fairly direct link to us as an entity, but from December on, those protections within the Act are extended out, and they'll include volunteers, for example. They'll include unpaid interns or trainees, and they'll also include suppliers. That's whistleblowing from outside, very much outside. Shareholders. Also, and I've had a number of these myself, non-executive directors, who might not necessarily be employees and they might not necessarily have a contract as a contractor.

So that's a big change, because you're going to be asked to potentially investigate matters from categories of people outside of our organisation.

The other aspect is that there's going to be more relevant wrongdoing. So at the moment, a whistle-blower has to raise a relevant wrongdoing and it has to come within a category of certain areas. And they're very much prescribed and limited. So it's a criminal offence; a failure to comply with a legal obligation, though nothing to do with an employment contract, so HR matters are excluded; something that endangers the health and safety of an individual, which is of itself very, very broad; damage to the environment; a miscarriage of justice or misuse of public funds; and then there's gross negligence or mismanagement by a public body.

So they're the main areas at the moment, and that's going to be expanded out particularly as regards to breaches of EU law in areas of public health, public procurement, product safety.

So if you were in a manufacturing site, say, in a med-tech environment, you might have regulatory requirements in terms of how certain products are made. Issues around product safety are now going to come into the fold, environmental protection, and also data protection. So that's a quite a new umbrella. A wider umbrella of issues can be raised in terms of relevant wrongdoings.

Another change is around what penalisation means. So the Act as it is and as it will be amended, essentially what it does is whoever is making the information available as a protected disclosure secures under the Act certain protections against penalisation. And therefore, if they're penalised, they have certain remedies. They can go through the Unfair Dismissals Act and get five years rather than two years if they're an employee and they're dismissed, or they can go to the circuit court and look for protection there.

So in terms of what penalisation they might suffer, that's been expanded out. I mean, penalisation is a concept that's been pretty consistent for some time now within a range of the Acts, but now it'll include things like withholding training. A non-renewal of a contract of an employee, that could be considered penalisation. I definitely see that one triggering quite a few claims.

Reputational harm, including harm on social media. There's the rather ominous sounding "blacklisting of a person across an industry". Not sure how that can be proven, but . . . So that's a form of penalisation.

And also, even a medical or psychiatric referral. I've seen that myself, where somebody was concerned about the nature of what they saw as quite ludicrous claims being made as a protected disclosure and they sent the individual to be assessed because they were concerned about how off-the-wall some of these allegations work. But now that of itself could be deemed penalisation, a referral.

And then finally, the other big change is around . . . there's going to be more obligations on tighter timeframes in terms of acknowledging receipt, and in terms . . . So you have a seven-day period to acknowledge receipt. That's a pretty tight timeframe, seven days. You have three months to investigate and give feedback, or if it's complex matter . . . and let's face it, I'm sure there'll be some wording around that. But a bit like extending a data protection subject access requests. You will probably get the additional three months so you can extend it to six months.

And also, there's reference in the directive that organisations have to act diligently. So I think that brings a more robust formal approach to our dealing with protected disclosures.

So very much an enhancing of our existing legislation with new angles whereby people can make claims and the type of claims they can make and the type of relevant wrongdoings people can raise.

Rolanda: And obviously, what you're saying there is that employers have a greater responsibility to actually go back then. So it's not a matter of saying, "Thanks very much for raising that. Bye". You have to actually go back and . . .

David: Yeah, just to be clear, though, they don't necessarily have to go back and say, "You raised a complaint. We've now taken disciplinary action against David McCarroll, who was responsible in that area". But they have to give some feedback, and that can be tricky.

A bit like when somebody has raised a bullying complaint, and there's a follow-on disciplinary process. There's sometimes an expectation by the original complainant that they'll be somehow kept in the loop as to how much of a sanction David McCarroll got as the party who was found to have bullied you as the complainant.

So it can be tricky in terms of what you can relay back. But feedback is the term that's stated. Feedback could mean, "We've received it. We've set up something. We've examined it. There's on-going work". It might be limited enough, but feedback does have to be given.

Rolanda: And I suppose that puts a bit more emphasis on the carrying through of the investigation and  the stuff about it, in a way,

David: Yeah, and look, what's really being called for here more so than any other change in recent times, what's really required here for this to work and for employers to stay out of trouble . . . And the penalties are quite significant. I mean, as I said, if you dismissed somebody, and that was found to be an act of penalisation for them raising a protected disclosure, instead of going down for two years, you can go down for five years' remuneration. That's a whopping amount in terms of a compensation order.

And also, there have been a number of cases where an interim application can be made to court. It's kind of like an injunction. Somebody can say, "Look, I'm going to take that case, and I'm going to look for my five years. But I'm also now concerned that I've been dismissed, and I want a pause, a stay put on that". And they get maintained on their current salary for that whole time until the WRC case. So that's quite a significant remedy available as well.

So to avoid falling into a scenario where somebody might take that type of case, really a cultural change has to be effected across an organisation where, as an employer, you can't be afraid to actually shine the light on an awkward complaint that comes in. And you have to have robust enough policies and a robust enough culture within in your organisation to say, "Okay, you are alleging that this process is wrong. Maybe two years ago, we might have said, 'Look, that's a load of rubbish. Forget about it'. But now we have to actually acknowledge that. We have to carry out some investigation into that. Perhaps even we have to acknowledge that, actually, something wrong was undertaken there and fix it". But you do need to move away from the situation.

What's always asked me when I take our . . . or when I speak to somebody about protected disclosure, one of the first things that a client will say is, "Well, the individual employee, David McCarroll, wait until I tell you about him. Very difficult guy. Doesn't get on with anyone. Lazy. We were going to fire him last year. Very difficult". But the motivation doesn't matter. The status or our view of the individual who's making the disclosure doesn't matter. It still needs to be examined.

And take it from somebody who's done many, many, many protected disclosures. Quite a lot of the time, the people who do raise protected disclosures come from a place where somebody is either responding to pressure in terms of maybe performance or a perceived risk around a redundancy or a dismissal. They come from that place. So you still have to take it out, deal with it, and then go back to whatever you were doing in terms of a disciplinary or redundancy after.

Rolanda: Okay. We had an interesting question there. I'm sorry, folks. I meant to say at the start that if you have any questions, pop them into the question box. If we don't get around to them, we'll send them on to David.

If a company does not have a specific policy, a Protected Disclosure Policy, but they have a portal on their intranet where people can report any concerns, is that sufficient?

David: Yeah, it's not going to be . . . Well, first of all, it depends on whether you are immediately . . . So right now, if you are not in the public sector, you are highly recommended to have a Protected Disclosure Policy. So you're not in breach at the moment if you're not in the public sector or you have some kind of a "raise your voice" or "voice your concern" type arrangement.

Lots of multinationals have quite expansive mechanisms whereby you can make a phone call with somebody, you can put an email, you can even contact some non-executive directors on very senior boards of the company. So there are existing mechanisms that are in place.

But the reality is if somebody is alleging that they, particularly after December . . . And remember, any company over 250 employees will have to have a Protected Disclosure Policy. That's just what the Act will say. And then two years down the line, any company over 50 will have to have a Protected Disclosure Policy. But if somebody makes a claim that they were penalised, it isn't going to be enough to be able to just point to the portal on your email and say, "Well, they could have done this".

In actual fact, as a matter of stance, they don't even have to call it a Protected Disclosure. And there's certainly been case law where it doesn't have to be even in writing. It can just be a reference in a discussion. A good Protected Disclosure Policy would certainly assert that it should be in writing and that it should be through this policy. But typically, that has not always been held to be the case by the courts.

So certainly a portal or an email or a telephone hotline isn't going to be enough. All you're doing is putting architecture around that that helps. Because in the past, when some client has come to me and said, "Look, this has popped up through our email complaint. It's coming from somewhere else, and this is the issue", they might have the architecture as to what you do with that. Where does it fit into your policies? How is this complaint now being put to somebody else if it relates to an individual?

And just one thing I forgot to mention, just to re-emphasise that matters that relate to HR, somebody's contract, somebody's pay, somebody's dispute with another individual, they're currently outside protected disclosures, and the EU directive is even more expressly and explicitly clear that they will fall outside of a disclosure. Again, they can be redirected as dignity at work issues, or grievances, or that kind of thing, but they're not protected disclosures.

Rolanda: So in actual fact, the policy is quite important, because as well as obviously identifying the root to make a complaint, it will set out how it's  delt with and who will deal with it, and you probably want to nominate certain individuals to investigate complaints.

David: I'm conscious that I'm probably speaking to a considerable number of people who are in the HR space here, but they'll know that a lot of the time when a new obligation arises like this, it's directed towards HR. But I'm not sure that HR are the right person to actually deal with this.

I mean, if we work in a factory and an issue arises in relation to a qualitative step that was taken in the production of some product or other, then whilst HR can provide guidance on the procedure to be used and assist, shouldn't it really be a quality assurance person or an engineer or somebody in that kind of space, who can undertake a proper investigation into the matter and speak with some authority as to whether the issue that is raised, the relevant wrongdoing, is correct or incorrect?

So our policy needs to have enough flexibility to be able to direct us to an appropriate person.

Rolanda: Okay. And just before I move on, I just wanted to draw your attention to the slide there. Obviously, it's important with any policy to ensure your staff are trained. And with whistleblowing, it is important that staff are aware of the proper process for doing that, because as an organisation, you want to encourage it.

Legal-Island has a Whistleblowing Awareness training eLearning course that's available for all employees. There is special offer for webinar attendees where you can get 50% off. If you would like to find out a wee bit more about that and whether it'll be relevant for your organisation, if you want to just type "yes" in the question box, one of our eLearning team will get back to you directly.

We also have some information in our follow-up email about the eLearning programme.

I can imagine, David, that COVID-19 health and safety concerns are a big issue for blowing the whistle or probably one of the most common reasons for whistleblowing in the last year, which moves us on to our last subject.

Vaccination Status

You can't do anything these days without talking about COVID. We're going to look at just vaccination. There was a pretty strong feeling in the poll earlier that people do feel that people should disclose their vaccination status. And it is a bit of a tense subject, that practically it would make sense and all of the rest, but there are various valid reasons why it's not a requirement to do so over to you. What do you think, David, in terms of vaccine status?

David: Well, the poll finding doesn't surprise me. I think if I had a tenner for every client who asked me, "Why can't they use the QR code that's publicly available? You can get it on gov.ie", I think I'd be giving this webinar from my newly purchased villa in Barbados somewhere because everybody wanted to know that straightaway.

When you're dealing with a query like this, typically a client will say, "Okay, I don't understand this. I met a colleague of mine for coffee. We had to go down, I had to show my passport, I had to give my vaccination status, we sat there for 10 minutes and had a chat, we went back to work, and I'm not allowed to know the vaccine status of anybody there. That's crazy. What's going on? Why can't we just do what they do? It's just a phone. Nobody will mind".

First of all, I'd say that I know my colleague, Michelle Ryan, in a previous Audience with RDJ dealt with this issue in significant detail. So I don't want to repeat all of what she said, and I'd maybe direct people . . . there's a full transcript of that up on the Legal-Island website. That's available.

But if I could summarise the position from a data protection perspective, the data protection Commissioner gave advice on this earlier this year. I won't read it at length, but what she says is in the absence of clear advice from public health authorities in Ireland that it is necessary for all employers and managers of workplaces to establish vaccine status, the processing of vaccine data is likely to represent unnecessary and excessive data collection for which there is no clear legal basis. So that's their starting position.

And it's a clever enough position because it gives enough flexibility that, "Look, if it did become a health issue that it was a requirement . . ." As it has, for example, in France and Italy. They have definitively determined that frontline workers, for example, must declare vaccination status. And I think in Italy yesterday they were suspending huge numbers. They weren't going to dismiss them, but they were going to suspend them without pay. But that has a legislative background to it. There's a law compelling it. We don't have anything like that here.

And remember, our vaccine is very much a . . . it's not mandatory. You're not required to get a vaccination. Also, as a scientific fact, having the vaccine doesn't prevent you . . . it gives you a high chance of not getting COVID, but obviously you could still get COVID and you could still pass COVID on.

Often when you go through with a client what they would do with vaccination status data, what use would it be . . . For example, I had a client who rang me and said, "We have a site that obviously feeds into a wider European and global network, and we're being asked for figures in terms of vaccination status". And they were trying to get their IT to do one of these HR surveys and hoping that it would be anonymous. And then they were concerned, "How many people would respond?" Would they just annoy people by asking?

So I indicated to that client, "Look, depending on what figures are being looked for . . ." I mean, our vaccination figures, we're very transparent in this country. They're on the news every night. They're available on the Department of Health website. We're at 90% in terms of our adult population. So if you employ 1,000 people, we're at 90%, chances are 900 of them are vaccinated. Unless you employ a huge number of children in your organisation, which is another matter, I think your rule of thumb . . .

Now, if you were to go into much, much more detail and expose your organisation to the scrutiny of whether or not it is necessary, or whether there's a clear legal basis for holding and processing that data, what are you going to get?

You might get detail that 84% rather than 90% of my site are actually vaccinated. What does that actually even mean? Those 84% live in a wider society. They come in and out of work. They are mixing with their colleagues. The standalone status percentage-wise of your particular site is fairly meaningless, other than perhaps being able to provide some kind of assurance to clients that this is a fully vaccinated site. And that's just simply going to be a very, very difficult thing to do.

So, in summary, what I tell people is, as a pretty strong rule of thumb, vaccination status is not a question you should even consider asking unless you have to ask it.

Who has to ask it? The first group of people who have to ask it are operators of indoor dining facilities, for example. Now, why do they have to ask it? They have to ask it because they were legally shut down and not allowed to let people into their premises and trade.

And then Health (Amendment) (No. 2) Act 2021 came in. And that essentially said, "Okay, you are now no longer prohibited from letting people in so long as you can use the digital COVID cert and also so long as you don't process and hold that data. And also, you have the usual COVID protocols adhered to".

So even for those people, they're not supposed to hold and process that information. The whole idea of the DCC is that you just hold the QR code and as a live exercise, it just ticks and gives your name and says you're in the clear. They are required to do so by law, so they have a legal basis to actually undertake that.

There's possibly another category of people. There's certainly in the HSE and within that guidance note the data protection Commissioner did indicate that there might be further situations such as in the provision of frontline healthcare services where vaccination can be considered a necessary safety measure.

And a lot of clients of mine have said, "Well, we do something kind of health-related. Could we not fit into that category as well?" And what I would say to you is, first of all, let's not diminish the hugely tragic risks that arise within the frontline health services. They've had employees, unfortunately, pass away because of COVID-19. So it is a very real risk that has to be measured. And it's that risk that drives them to seek detail on vaccine status.

That is underpinned . . . and all of this documentation is freely available on their website. They have very, very extensive risk assessments to assess whether there's a Category A area in terms of risk, which I presume would be something like a COVID ward or maybe an oncology ward or something like that. And then they have a data protection impact assessment, which you're talking about a document that runs 40 to 60 pages in terms of teasing out what kind of information is coming in, what the risks are of retaining that information, all of that.

So they've done that, and they've moved slowly, and certainly with the guidance of the data protection commission to do that. But I really don't see a lot of people fitting into that same box, that it's necessary for them. There may be some who could argue that yes, it is necessary for them.

But vaccine status, I get the idea that it could be something that would be helpful, but in actual fact, when you tear it apart and rebuild it and have a look at it again, knowing vaccine status doesn't improve your lot a whole while in terms of being able to . . . There are other measures available. And that's what the data protection Commissioner is saying. They're saying, "Look, even if you know the stuff, what are you going to do that information? How does that help you? You still have other tools available".

And the final thing I'd say is that in terms of indoor dining and the QR code that's read on the digital COVID cert, that's going to be gone in terms of a requirement from 22 October. So would I build a risky system around digital COVID certs that aren't going to be required for indoor dining in a month or so? I'm not sure I would. They'll still be required . . . or not required, but they'll still be available to assist for travel in the European area. But they won't necessarily be mandatory. They're not a mandatory requirement.

Rolanda :David, thank you very much for that. We're just running out of time, but just a wee minute, because there were a couple of wee questions there. In a way, you can't ask for that data, because it's personal medical.

Could you do some sort of anonymous poll to get a snapshot to say whether your organisation was reflective of the general population's statistics?

David: You could, but I'm not sure why you would. As I said, I've had clients who have come and said, "Look, I need to feed back to HQ as to where we are in terms of vaccine status". And I would say that any anonymised poll is going to have a maybe limited value in terms of how truthful and how accurate it would be. We have actual statistics that are produced on our Department of Health website that go through all the categories of people.

Remember, at the start of this process, they said the first category would be people over 70, the second category . . . They have set out every single category of persons, the percentage, and the number of people who have been vaccinated in those areas. So it's not actually that tricky to work out as a rough guide how many people in your organisation, if you followed the national trend, would likely be vaccinated.

And whilst yes, you could do that, I have seen already where people have tried to stir the issue of vaccine status or have been asked to deal with that issue. People are going to resist. There are people who just feel that is not something that I should share. That's medical information. What next? I'm not saying I agree with those people or not, but ultimately, there can be good reason for those people.

It's well known, for example, that the take-up amongst pregnant women is very low. And if you are asking a significant number of people, you might have people who say, "Well, I feel I'm being a bit outed here in terms of whether or not . . . I do want to, but I have concerns". Are you just going to stir up issues without really getting much gain?

So what if you're 95% or if you're 65%? As I said, all of those people, vaccinated or not . . . If you have a site in Citywest, they're still going in and out of work with masks unwashed, one million people around the greater Dublin area. So it's really fairly meaningless whether or not you're at 90% or 80% or whatnot.

Rolanda: We had a question there. We're not going to have time to deal with it today. And I suspect one of Michelle's answers where they were asking about the "no jab, no job" type thing, which is a whole different conversation. Unfortunately, we don't have time to get into that today.

David, thank you so much for your time.

David: Thank you, Rolanda.

Rolanda: Our next webinar, we have a wee slide there just with the date of our next webinar coming up. David's contact details are there if you want to contact David if you had any specific questions.

Our next webinar then is in September. I think it's . . . Katie, just move that on for me. On 23 September. We are looking at maternity and paternity leave in terms of international comparison and what lessons we can learn from that.

Thanks again to David. And just remember, folks, in terms of the Annual Review, which David's colleague Jennifer will be speaking at, opening and closing the event, the early bird finishes today at 5:00. Click on the link in the follow-up email to book, or email my colleague Vanessa.

We will send a link as well to Michelle's earlier webinar and the questions and answers from that. The questions from today's webinar we'll send on to David as well.

Thank you once again. Have a good week.

David: Thank you, everyone. Bye.

Rolanda: Thanks a lot, David. Bye.

This article is correct at 17/09/2021
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David McCarroll
Ronan Daly Jermyn

The main content of this article was provided by David McCarroll. Contact telephone number is +0353 (0)91 895333 or email david.mccarroll@rdj.ie

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