What is the role of prescribed persons under the 2014 Act?

Chapter 4: The prescribed persons’ system under the Protected Disclosures Act 2014 4.1 Introduction 4.1 Introduction

4.2 What is the role of prescribed persons under the 2014 Act?

4.2(a) Introduction

In order to assess the role of prescribed persons under the 2014 Act the following issues were examined: (i) Why are disclosures made to a prescribed person? (ii) What are the legal requirements for making a disclosure to a prescribed person? and (iii) What persons are prescribed and who should be prescribed under s 7 of the 2014 Act?

610 See: Appendix 2(b), ‘Protected Disclosures Prescribed Person Survey’.

611 See: Appendix 2(a), ‘Prescribed Persons’ Survey Cover Letter’.

612 See: Appendix 2(c), ‘Default Report Protected Disclosures Prescribed Person Survey’.

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4.2(b) Why are disclosures made to a prescribed person?

The prescribed persons’ system has been described as a ‘halfway house’ between disclosures to an employer and disclosures in the public domain.⁶¹³ The 2014 Act is designed to promote internal disclosures, but this is not always appropriate, especially if the worker’s employer is involved in the wrongdoing or has failed to respond adequately or at all to a disclosure of wrongdoing. The UK National Audit Office (‘UK NAO’) in their 2015 report on prescribed persons recognised that the making of a disclosure externally from the employer to a prescribed person means that the system for disclosures is not working properly, stating:

A concern is usually raised first with the employer. In such cases, where appropriately handled, no further stages of reporting would be necessary. The number of concerns raised externally, and how they vary over time, is an indicator of how effectively the system is working. The need for prescribed persons will always exist. But in a well-performing system reporting to them should be the exception, not the rule.⁶¹⁴

A prescribed person is independent of the worker’s employer and usually has the authority to both investigate disclosures and to hold their regulated entities to account.⁶¹⁵ In general, prescribed persons have regulatory functions in the area that is the subject of the disclosure.⁶¹⁶

Savage and Hyde emphasise that ‘Regulators need whistleblowers; whistleblowers need regulators.’⁶¹⁷ They argue that disclosures from workers can have a positive influence on regulatory practice.⁶¹⁸ Workers in regulated bodies are well placed to access information on a day-to-day basis that the regulator may not be able to access. In the corollary, the role played by regulators in the whistleblowing process can also be a positive one as regulators have the potential to vindicate and address the concerns raised by the worker.⁶¹⁹ There is a public interest in disclosures of wrongdoings being made to the appropriate prescribed

613 Ashley Savage and Richard Hyde, ‘The response to whistleblowing by regulators: a practical perspective’

(2015) 35 Legal Studies 408, 415.

614 National Audit Office, ‘The role of prescribed persons’ (NAO 27 February 2015) 29.

615 Arron Phillips and David Lewis, ‘Whistleblowing to Regulators: Are Prescribed Persons Fit for Purpose?’

(October 2013) 5 Middlesex University Erepository.

616 Department of Public Expenditure and Reform, ‘Statutory Review of the Protected Disclosures Act 2014’

(DPER July 2018) 7.

617 Ashley Savage and Richard Hyde, ‘The response to whistleblowing by regulators: a practical perspective’

(2015) 35 Legal Studies 408, 408.

618 ibid 409.

619 ibid 410; Department for Business, Energy and Industrial Strategy, ‘Whistleblowing, Prescribed Persons Guidance’ (BEIS March 2015) 4.

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person.⁶²⁰ Indeed, by disclosing to a regulator not only is it expected that it can address the particular wrongdoing disclosed, but it is also expected that it can have an overall influence on the behaviour of the regulated bodies as the regulator should have the requisite legal authority and resources to achieve this. As Savage and Hyde explain ‘Through a whistleblowing disclosure by a worker and a response by a regulator, the regulatory capacity of both is enhanced, as the whistleblower would not have had the organisational capacity to affect changes within the regulated entity and the regulator would not have been positioned to detect the regulatory non-compliance.’⁶²¹

It has been recognised that disclosers ultimately view prescribed persons as being the solution to addressing their concern.⁶²² Nonetheless, it was identified in the UK by the Department for Business, Energy and Industrial Strategy (‘UK BEIS’) in its whistleblowing framework call for evidence that this expectation is not always met and can lead to a lack of confidence in the system.⁶²³ It was recognised that this lack of confidence centres around the paucity of communication from prescribed persons and that one of the roots of this issue is that prescribed persons often operate within particular constraints, including overriding legal obligations, and this can result in prescribed persons being restricted from providing feedback in relation to the progress or outcome of investigations.

In the survey carried out by the UK NAO for their 2015 report on prescribed persons, ten of the seventeen whistleblowers surveyed stated that their expectations were not met by the prescribed person because it did not investigate their disclosure.⁶²⁴ The UK NAO also identified a range of factors that can result in this expectation gap, namely: (i) different prescribed persons have different prescribed powers meaning that some regulators can act on the disclosure by taking enforcement actions, whilst others cannot; (ii) prescribed persons are not legally required to investigate all concerns that are received by them, and each prescribed person decides which disclosure merits investigation; (iii) prescribed persons sometimes receive a number of similar disclosures which are responded to in a broader manner, such as adding a new area to their routine inspection programme, leaving a worker feeling that their specific disclosure has not been addressed; and (iv) prescribed persons

620 Jeremy Lewis and others, Whistleblowing Law and Practice (3^rd edn, OUP 2017) para 5.65.

621 Ashley Savage and Richard Hyde, ‘The response to whistleblowing by regulators: a practical perspective’

(2015) 35 Legal Studies 408, 413.

622 Department for Business, Energy and Industrial Strategy, ‘Whistleblowing Framework Call for Evidence, Government Response’ (BEIS June 2014) 6.

623 ibid 6 and 15.

624 National Audit Office, ‘The role of prescribed persons’ (NAO 27 February 2015) 17.

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cannot protect workers against penalisation or dismissal, nor can they provide legal advice.⁶²⁵ To fill this gap, the UK NAO recommended that prescribed persons ‘clearly state powers and responsibilities to manage whistleblower’s expectations … Whistleblowers also need to know that there are proper procedures in place to deal with their concerns and what will happen if they raise a concern.’⁶²⁶

In order to remedy this deficiency in the prescribed persons’ system, the UK government introduced an obligation on prescribed persons to report annually on the disclosures received by them.⁶²⁷ This reporting obligation was intended to result in greater transparency, thus instilling confidence in the actions of prescribed persons, driving up standards across all prescribed persons, and ‘striking a balance between the desire of individuals to know action has been taken in respect of their disclosure, with the constraints that prescribed persons operate within, such as their responsibilities to maintain confidentiality.’⁶²⁸ However, the introduction of this reporting obligation alone is not sufficient to fill the expectation gap.

In Ireland, unlike in the UK, prescribed persons are legally obliged to comply with both the annual reporting requirement⁶²⁹ and the requirement to establish Procedures.⁶³⁰ It would be expected that based on the research in the UK that identified expectation gaps in the prescribed persons’ system, that these legal obligations would promote the making of disclosures to such persons when the need arises. As the UK BEIS guidance for prescribed persons explains ‘There is an implied role for prescribed persons to play in the whistleblowing process.’⁶³¹ The making of disclosures to a prescribed person can be an attractive one for workers in circumstances where the worker is unable or unwilling to make their disclosure to their employer and where the prescribed person has the necessary investigative and enforcement powers to address the wrongdoing. The essential requirement for promoting the making of disclosures to prescribed persons is that the worker has confidence in the role of the prescribed person, which can be achieved through transparency

625 ibid 18.

626 ibid 17.

627 The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, SI 2017/507. These Regulations were made by the Secretary of State in the exercise of powers conferred by Employment Rights Act 1996, s 43FA, as inserted by Small Business, Enterprise and Employment Act 2015, s 148(1) and (2).

628 Department for Business, Energy and Industrial Strategy, ‘Whistleblowing Framework Call for Evidence, Government Response’ (BEIS June 2014) 15.

629 Protected Disclosures Act 2014, s 22.

630 ibid s 21.

631 Department for Business, Energy and Industrial Strategy, ‘Whistleblowing, Prescribed Persons Guidance’

(BEIS March 2015) 4.

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and communication of actions taken in respect of other disclosures and actions that can be taken in respect of their particular disclosure, be it as a specific action on foot of that disclosure or as a broader action in relation to the organisation as a whole over which the prescribed person has authority.

4.2(c) What are the legal requirements for making a disclosure to a prescribed person?

Under s 7 of the 2014 Act, a worker can make a protected disclosure to a prescribed person.

A person can be prescribed by the Minister for Public Expenditure and Reform (‘Minister’) by reason of the nature of their responsibilities or functions to be the recipients of certain disclosures.⁶³² In order to make a protected disclosure under s 7, there is a higher evidential burden than a disclosure under s 6 of the 2014 Act to an employer or other responsible person, under s 8 to a Minister, and under s 9 to a legal adviser, in that the worker must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true. Further, in making the disclosure to a prescribed person under s 7 of the 2014 Act, the worker must reasonably believe that the relevant wrongdoing falls within the description of matters in respect of which the person is prescribed. In order to assist a worker in this regard, there is a corresponding list in the prescribed persons’ SIs to the list of prescribed persons setting out matters in respect of which the person is prescribed.

The person to whom the disclosure is made must be prescribed by the date of the dismissal or penalisation in order for the disclosure to the prescribed person to be protected.⁶³³ The reasonable belief test does not qualify the requirement in s 7(1)(a) that the person to whom the disclosure is made is prescribed.⁶³⁴ Hence, in order for the worker’s disclosure to be protected the worker must make their disclosure to the correct prescribed person. It is therefore essential that the list of prescribed persons in the prescribed persons’ SIs is up-to-date and comprehensive in order to ensure that the worker can make their disclosure to the correct prescribed person.

In relation to the requirement that the worker must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true, the information disclosed and any allegation contained in it does not have to be substantially true, all that is required is that the worker reasonably believes that they are substantially true. In Korashi v Abertawe

632 Protected Disclosures Act 2014, s 7(2).

633 See: UK Court of Session decision: Miklaszewicz v Stolt [2001] IRLR 656 (CS) [19].

634 Jeremy Lewis and others, Whistleblowing Law and Practice (3^rd edn, OUP 2017) para 5.58.

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Bro Morgannwg University Local Health Board⁶³⁵ the UKEAT held that since the test is the worker’s ‘reasonable’ belief, that belief must be subject to what a person in their position would reasonably believe to be a wrongdoing.⁶³⁶ Further, the UKEAT held that both the information and the allegation must be substantially true. It was deemed to be insufficient to show that the gist of the matter complained of was believed to be substantially true when a number of other allegations were not so believed. Judge Mc Mullen stated that:

[O]nce one goes outside the immediate confines of the employment relationship and to an outsider ... additional layers of responsibility are required upon the discloser. The information must in the reasonable belief of the discloser be substantially true. There is no obligation to make allegations but if they are made they too must in the reasonable belief of the discloser be substantially true. Both information and allegations must fit that criterion. Here on the facts found by the Tribunal they did not. If we were required to decide this matter it would not be sufficient to show that a matter was believed to be substantially true when a number of the allegations were not so believed.⁶³⁷

The UK Court of Appeal has emphasised that there is no rigid dichotomy between

‘information’ and ‘allegation’.⁶³⁸ Information is capable of covering statements that might also be characterised as allegations, but not every statement involving an allegation will constitute information.⁶³⁹ What is required for the disclosure to constitute a protected disclosure is that it has ‘a sufficient factual content and specificity such as is capable of tending to show’ a relevant wrongdoing⁶⁴⁰ and this should be assessed in light of the particular context in which it is made.⁶⁴¹ Lewis and Bowers suggest that it is not necessary for there to be a narrow approach to what constitutes information and that ‘information’ may encompass an implicit statement of belief or opinion and that the ‘evaluation of whether that, either by itself or together with other matters disclosed, is sufficient to sustain the requisite reasonable belief will need to be made having regard to all the circumstances.’⁶⁴² They argue further that the subjective belief of a relevant wrongdoing may be shown to be reasonable

635 Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 (EAT).

636 ibid [62].

637 ibid [66].

638 Kilraine v London Borough of Wandsworth [2018] IRLR 846 (CA) [30], clarifying the confusion arising from the UKEAT decision in Cavendish Munro Professional Risk Management Ltd v Geduld [2010] ICR 325 (EAT).

639 ibid [30]-[31].

640 ibid [35].

641 ibid [41].

642 Jeremy Lewis and John Bowers, ‘Whistleblowing to No Avail: Protected Disclosures Post Kilraine v Wandsworth LBC’ (2018) 47(4) Industrial Law Journal 567, 581.

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by reference to a different wrongdoing or on different grounds to those that the worker had in mind at the time that they made their disclosure, ie an ex post facto justification.⁶⁴³ 4.2(d) What persons are prescribed and who should be prescribed under s 7 of the 2014 Act?

Under the prescribed persons’ SIs, there are purportedly 102 persons prescribed for the purpose of receiving disclosures under s 7 of the 2014 Act. These prescribed persons consist of seventy-one regulatory and supervisory bodies and thirty-one local authorities. The research uncovered that of the 102 prescribed persons, ten of the prescribed persons have either been dissolved, had a change of name, have merged, or had their functions transferred to another organisation.⁶⁴⁴

These anomalies in the list of prescribed persons need to be rectified. Otherwise a worker who makes a disclosure to an organisation that has not been prescribed will not be protected under s 7 of the 2014 Act, but may be considered a s 10 disclosure, which attracts onerous conditions.

Also, there are some notable omissions from the list of prescribed persons, which means that there may not be an appropriate recipient designated in relation to a particular type of wrongdoing.⁶⁴⁵ For example, the Irish Human Rights and Equality Commission (‘IHREC’)

643 ibid 581-582. This argument is premised on the approach taken in Chesterton Global Ltd v Nurmohamed [2018] ICR 731 (CA) [29] where the Court of Appeal held that the reasonableness of a worker’s belief that their disclosure was made in the public interest can be established by reference to factors that the worker did not have in mind at the time when they made their disclosure.

644These ten prescribed persons are as follows: (i) Two prescribed persons, the Opticians Board and the Health and Social Care Professional Council have been replaced by CORU in October 2015; (ii) The functions of the Commissioners of Charitable Donations and Bequests for Ireland, a prescribed person, have been taken on by the Charities Regulatory Authority in 2014; (iii) The prescribed person, the Dublin Docklands Authority, was dissolved on 1 March 2016; (iv) The prescribed person, the Commission for Energy Regulation (‘CER’) changed its name in 2017 to the Commission for Regulation Utilities (‘CRU’); (v) The Competition and Consumer Protection Commission (‘CPCC’) was established on 31 October 2014 when the two prescribed persons, the Competition Authority and the National Consumer Agency, were amalgamated; (vi) The prescribed person, the National Employment Rights Authority (‘NERA’) was subsumed into the Workplace Relations Commission in October 2015; and (vii) Transport Infrastructure Ireland was established as a result of the merger of the two prescribed persons, the National Roads Authority (‘NRA’) and the Railway Procurement Agency (‘RPA’) under the Roads Act 2015, effective from 1 August 2015.

645 Similar research undertaken in the UK also identified a number of national regulators who were not prescribed without any justification, as well as anomalies in the online list of prescribed persons maintained by the Department for Business, Energy and Industrial Strategy: Ashley Savage and Richard Hyde, ‘The response to whistleblowing by regulators: a practical perspective’ (2015) 35 Legal Studies 408, 416; Arron Phillips and David Lewis, ‘Whistleblowing to Regulators: Are Prescribed Persons Fit for Purpose?’ (October 2013) 6-7 Middlesex University Erepository; David Lewis and Arron Laverty, ‘A Survey of Information about Whistleblowing provided on the Websites of Persons Prescribed under Part IVA Employment Rights Act 1996’

(May 2011) 3 Middlesex University Erepository; David Lewis, ‘A survey of whistleblowing/confidential

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was established in 2014 and is Ireland’s national human rights and equality institution. It is an independent public body that accounts directly to the Oireachtas and whose functions include protecting and promoting human rights and equality; encouraging the development of a culture of respect for human rights, equality, and intercultural understanding in the State;

and promoting understanding and awareness of the importance of human rights and equality in the State.⁶⁴⁶ The IHREC has the power to carry out an inquiry into ‘a serious violation of human rights or equality of treatment obligations in respect of a person or a class of persons, or a systemic failure to comply with human rights or equality of treatment obligation’⁶⁴⁷ and where certain other conditions are satisfied and would, therefore, be an appropriate recipient of disclosures under s 5(1)(a),(b) and (g) of the 2014 Act.

Another example of an omission from the list of prescribed persons is the Charities Regulatory Authority (‘CRA’). The CRA was established under the Charities Act 2009 (‘2009 Act’) to both register and regulate charities operating in Ireland, as well as to carry out investigations in accordance with the 2009 Act.⁶⁴⁸ The CRA is already tasked with receiving information of offences under the 2009 Act;⁶⁴⁹ offences under the Criminal Justice (Theft and Fraud Offences) Act 2001;⁶⁵⁰ and of non-compliance with the provision of the 2009 Act.⁶⁵¹ Additionally, as the functions of the Commissioners of Charitable Donations and Bequests for Ireland, a prescribed person, have been taken on by the CRA, this underscores their suitability as a prescribed person. A further omission is the Legal Services Regulatory Authority (‘LSRA’), established in October 2016, and tasked with regulating the provision of legal services by legal practitioners.⁶⁵² Complaints against the legal profession are currently dealt with by the Law Society, the Solicitors Disciplinary Tribunal, and the Barristers' Professional Conduct Tribunal, but the LSRA will replace these and will deal with all complaints⁶⁵³ when it is fully operational.⁶⁵⁴

reporting procedures used by persons prescribed under the Public Interest Disclosure Act 1998’ (2007) Communications Law 125, 126.

646 Irish Human Rights and Equality Commission Act 2014, s 10(1)(a), (b) and (c).

647 ibid s 35(1)(a)(1) and (ii).

648 Charities Act 2009, s 14.

649 ibid ss 27, 59, and 61(a).

650 ibid s 61(c).

651 ibid s 61(b).

652 Legal Services Regulation Act 2015, s 13.

653 ibid pt 6.

654 Shane Phelan, ‘New legal regulator to probe complaints by summer 2019’ Irish Independent (Dublin, 2 May 2018) <www.independent.ie/irish-news/courts/new-legal-regulator-to-probe-complaints-by-summer-2019-36864827.html> accessed 6 November 2018.

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The Health Service Executive (‘HSE’) should also be prescribed under the 2014 Act in relation to disclosures from s 38 and s 39 funded agencies.⁶⁵⁵ Currently, the HSE can receive complaints⁶⁵⁶ from a service user in relation to any action of the HSE or a service provider that does not accord with fair and sound administrative practice, and adversely affects or

In document An empirical study of the purpose of the Irish Protected Disclosures Act 2014 (Page 164-174)