Whistleblowing in the Workplace. 8 April 2014

Transcription

1 Whistleblowing in the Workplace 8 April

2 Whistleblowing in the Workplace Chair Ian O Herlihy, Head of Employment & Benefits 2

3 Whistleblowing The Proposed Legislative Framework Elizabeth Ryan, Partner e: 3

4 Position Pre-Act 4

5 Position Post-Act 5

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7 Title Position in the Market Jkljkl Kljljl Lkjlkj Kljklj Hkjhjk hgjhghjg 7

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9 Penalisation 9

10 Potential Difficulties 10

11 Next Steps Matters which constitute a protected disclosure The manner in which workers are protected The investigation procedure (could contain a formal or informal step) The procedure for raising a concern externally Request for anonymity Link to disciplinary procedure 11

12 Whistleblowers and Data Protection Jeanne Kelly, Partner e: 12

13 The Data Protection Angle Why is this controversial at all? Subject access rights (she said WHAT about me?!) Fairness in data collection (Data Protection Acts) 13

14 The Data Protection Angle Whistleblowing not new Sarbanes-Oxley Act (US) 2002 Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (incentives!) Our experience: how does it become an Irish compliance issue? 14

15 Whistleblowing Hotlines EU/US tension in approach And: No EU passporting possible Do you seek forgiveness, or ask permission?! CNIL France Dassaut Systemes McDonalds France +Exide Tech Germany?(Wal-Mart) Sweden? (Key execs only) 15

16 Data Protection Issues Article 29 Working Party: who are they and what solutions had they? WP 117 Whether w/b hotlines can co-exist with DP laws? Focus on financial issues/crimes Transfers abroad Fair processing Proportionality Consequences for the data subject 16

17 Data Protection Issues WP 117 Privacy by design Limits: who can use, who can be reported If no evidence, destroy data after 2 months If wrongdoing uncovered, keep data until end of resulting process Regulator clearance may be needed Secure processing transfer contracts Local filtration 17

18 Data Protection Issues Irish Data Protection Commissioner Guidance (March 2006) Focus on Issues not Individuals Consider the DP implications Data minimisation approach No encouragement of anonymous whistleblowing Tell your employees Anti-blowback measures Transfers abroad 18

19 The Protected Disclosures Bill and Data Protection Does it cut through the data privacy issues? Not a defence to a DP breach to say complied with the new Bill. What happens if whistle-blower identity is revealed? (Section 16) 19

20 Takeaways S.21 Public bodies must design schemes to deal. Those schemes must still be DP complaint. You may need to re-calibrate your existing DP documents If outsourcing, robust contracts needed. Approach in a privacy by design and HR compliance by design manner 20

21 Dealing with a Whistleblowing Investigation by a Third Party Catherine Allen, Partner e: callen@mhc.ie 21

22 Why will Third Parties be Involved? Section 7 of the Protected Disclosures Bill Prescribed persons: An Garda Síochána; Office of the Director of Corporate Enforcement; Health and Safety Authority; Health Information and Quality Authority; National Consumer Agency? 22

23 Why will Third Parties be Involved? Section 19 of the Criminal Justice Act 2011 Mandatory reporting for certain types of offences Applies to everyone No express defence of legal professional privilege Awaiting Law Society Guidance 23

24 Third Party Investigations May be happy to rely on an internal investigation pending developments Preservation of evidence Witness interviews privilege against self-incrimination Separate legal representation may be necessary 24

25 Third Party Investigations External investigation May have to be dealt with in a similar fashion to a dawn raid Expensive and lengthy process. Investigators have to produce a: Coherent, Accessible, and Traceable record of the files of and interactions between suspects. 25

26 BCCI Investigation Largest bank fraud in history (over 3,000 criminal customers, money laundering, terrorist financing etc) 100 million documents found in London 9,000 boxes containing several million pages of documents (some handwritten notes in various Arabic dialects) found in New York and Miami Even more documents in the Grand Cayman Islands And most of the documentation had in fact been shredded, destroyed or removed from the bank s head office in London and flown to Abu Dhabi in

27 Corporate Criminal Liability Absolute / strict liability offences Identification doctrine 27

28 Takeaways Be aware of your section 19 CJA 2011 obligations Have a process for making section 19 reports Have a process for dealing with: internal investigations that may lead to criminal prosecutions; and external investigations (similar to dawn raid processes) 28

29 Q & A Elizabeth Ryan, Partner e: eryan@mhc.ie Catherine Allen, Partner e: callen@mhc.ie Jeanne Kelly, Partner e: jkelly@mhc.ie 29