Introduction
COVID-19 related concerns
Dealing with existing or new Protected Disclosures
External Links and Additional Resources

Introduction*

The COVID-19 crisis has created a great deal of anxiety and uncertainty for us all. Our first priority is to help control the virus and keep everyone safe and we advise everyone follow the HSE’s guidance on protecting yourself and others.

However, international experience suggests that many workers will have concerns about their employer’s compliance with measures aimed at tackling COVID-19.

There is also a growing number of cases involving retaliation against workers speaking up about the risk to their colleagues and the general public.

It’s likely that Irish workers will raise concerns about compliance with Government public health measures too. It’s therefore important that they be able to do so quickly and without fear of negative consequences.

Transparency International (TI) Ireland provides guidance, training and support to organisations on how they can provide a safe working environment for anyone raising concerns about potential wrongdoing. This is delivered as part of its Integrity at Work programme.

TI Ireland also operates the Speak Up Helpline (1800 844 866) and can offer free confidential guidance and access to free legal advice from our partners the Transparency Legal Advice Centre for workers raising concerns in the public interest.

If your employees, contractors or volunteers have concerns about risks to their health and safety, patients or customers, there are some legal obligations on employers in place to encourage their workers to speak up.

Our free Speak Up Safely Guide provides advice on the steps your employees might need to take when making a protected disclosure.

Our Speak Up Safely video also provides a brief overview of how the Protected Disclosures Act 2014 (Ireland’s main ‘whistleblowing’ law) works.

Advice for Irish workers during the COVID-19 pandemic is also available here.

You might find the information below useful when dealing with such concerns during this pandemic.

*This resource is for general information only. It is not legal advice and should not be relied upon as such.

COVID-19 related concerns

Official Guidance on controlling COVID-19

Official guidance on managing COVID-19 related risks includes the Government's Return to Work Safely Protocol, the Health and Safety Authority (HSA) Guidance for Employers and Employees and HSA COVID-19 FAQs for Employers and Employees in relation to Home-Working on a temporary basis.

More guidance on controlling COVID-19 is included in the Government’s announcement on public health measures and on the HSE website. Separate guidance on employment rights during the pandemic is published on the Citizens Information website.

Legal Protections for Workers reporting COVID-19 related risk

It should be noted that workers may enjoy legal protections if they raise a concern about compliance with workplace COVID-19 control measures. This includes those workers working remotely/at home.

Such protections are provided for in the Protected Disclosures Act 2014 (PDA) and the Health (Amendment) Act 2007.

A worker who makes a disclosure consistent with either Act will be protected from retaliation including dismissal, disciplinary action, and informal sanctions including denial of training or promotional opportunities.

The responsibilities of both workers and employers are set out in the legislation, while guidance on interpreting the PDA is available from the Workplace Relations Commission. The Speak Up Safely Guide also provides advice for workers on complying with the law.

Review protected disclosure policies

Reporting concerns about adherence to COVID-19 control measures - to a worker representative, manager or another responsible person - should be made as easy as possible.

For this reason, we advise that employers review their protected disclosures/health and safety reporting policies to see that any potential barriers to reporting COVID-19 concerns are addressed.

Policies should make it clear that protected disclosures highlighting serious risks of harm – including the transmission of COVID-19 - can continue to be made by phone or in person. There should be no requirement for workers to put their disclosures in writing but workers should be allowed to do.

The Government's Return to Work Safely Protocol in particular, provides clear guidance on the steps employers should take in receiving and acting on reports. Your policies should also make it clear to workers what will happen when someone makes a COVID-19 related disclosure.

Reassuring workers

If you haven’t done so already, it is important to offer reassurance to your workers that they will be listened to, their concerns will be dealt with in confidence and that they will not suffer as a result of speaking up.

It should be made clear that anyone threatening or attempting to silence a worker that raises a COVID-19 related concern (and/or makes a protected disclosure) may face disciplinary action for doing so.

Anyone considering making a disclosure should also be made aware of existing supports (such as employee assistance programmes) and sources of advice (including helplines, HR and management).

Workers should be encouraged to make a report and that their identity (or identifying information) will not be shared unless necessary.

Where a concern is to be raised anonymously, employers can ask their workers to use an anonymous email or ‘Pay As You Go’ mobile number to allow them to communicate with the recipient of the disclosure by text or messaging app.

If your workers are unsure about making a report, you can refer them

to the relevant section of your Health and Safety/Protected Disclosures policy
to our confidential Speak Up Helpline/Transparency Legal Advice Centre free of charge.

Workers should not be asked to blame or identify anyone when reporting a concern – it should be enough to point to the relevant health and safety risk to see it acted upon.

External Reports

If workers don’t receive a response to their concern or they are not acted upon, they are more likely to report to someone outside the organisation. They are legally entitled to do so in certain circumstances.

Either way, it is worth reminding workers of external regulatory agencies that can provide advice on your health and safety obligations as an employer.

These include the Health and Safety Authority (HSA) which provides advice and resources on meeting your health and safety obligations as an employer.

If your organisation is under the aegis of the HSE, you can also direct them to the HSE Protected Disclosures Manager. Relevant workers may also report concerns about standards in health and social care services to the Health Information and Quality Authority (HIQA).

TDs, Journalists and Social Media

TI Ireland encourages workers to report to their employer where possible so that they have the chance to address those concerns promptly.

However, they might believe their disclosure needs to be made to someone other than their employer, government department or regulator (e.g. the HSA).

In certain circumstances they may be legally entitled to report to a TD, journalist or relevant civil society organisation. We advise anyone reporting in such a way to seek legal advice (via the Speak Up Helpline or directly from a solicitor) before they make a disclosure.

For more information see page 11 of the Speak Up Safely Guide.

Irrespective of whether an employer believes such a disclosure was justified, we encourage employers to focus on the substance of the disclosure and see that the potential risk is addressed, rather than on the way the disclosure was made.

Dealing with existing or new Protected Disclosures

More than ever, the COVID-19 pandemic requires that workers feel safe in speaking up so that related health risks as well as incidents of fraud and misappropriation can be addressed swiftly.

Receipt of disclosures

Dedicated phone lines should remain open where possible and where a recipient is working remotely, redirected to their home or mobile number for the duration of the lock-down.

Likewise, there should be no interruption in the receipt of disclosures by email, webform or messaging service.

If there is to be any delay in acknowledging and/or assessing disclosures this should be made clear to workers on dedicated staff circulars, web or intranet.

Assessing and investigating existing or new Protected Disclosures

The crisis might make it more difficult to interview new complainants, witnesses or respondents. This is particularly so given the current lock-down and social/physical distancing measures.

However, it should be possible for assessors and investigators to interview complainants, witnesses and respondents by phone and or webcam/video messaging apps during the crisis. Indeed, many investigations are normally conducted this way.

Where a worker requests anonymity, the worker might be interviewed by phone using a Pay-As-You-Go number or advised to block their number when making initial contact with an assessor.

Thereafter, it should be made clear to the discloser that their identity may need to be shared with the assessor for a full assessment of the credibility of the concern to be established and/or for a full investigation to begin.

If any of the parties to a case are unwilling to be interviewed by phone or webcam/video messaging, then the decision on whether to continue or suspend the assessment or investigation should rest with the assessor and/or investigator, taking into account proportionality, natural justice, and the current emergency legal requirements.

Taking action on foot of an investigation

Where an investigation has been delegated to an external investigator, the decision to discontinue or suspend the assessment and/or investigation should not rest with an employer or manager. This is particularly so where the perception of a conflict of interest might arise from the employer’s decision.

However, where an investigation is complete and disciplinary action by the employer is required, the decision to pursue the case should be based on the principles of proportionality and natural justice, and taking into account current emergency legal requirements.

Respondents and complainants will need to be afforded the right of appeal in respect of any findings made by an investigator.

Workers should also be informed that claims and appeals can still be lodged for reprisal and/or disciplinary action within the relevant statute of limitations.

However, given that hearings by the Workplace Relations Commission (WRC) and Courts are currently suspended (other than in exceptional circumstances), we recommend that any related disciplinary action be suspended until normal WRC and court hearings resume.

Human Resources and redeployment

Staff designated for the purpose of receiving and assessing protected disclosures should not be reassigned unless necessary. Where they are, alternative arrangements should be communicated to workers.

Suitably qualified and trained staff or external providers should be assigned to receive and assess disclosures for the period of redeployment.

Workers should also be notified of any changes to HR and employee assistance programmes and directed to the relevant supports where available.

External Links and Additional Resources

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Advice for Irish employers during the COVID-19 pandemic

Introduction*

COVID-19 related concerns

Dealing with existing or new Protected Disclosures

External Links and Additional Resources