Whistleblowing in the Workplace - Mason Hayes & Curran€¦ · • The investigation procedure...
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Transcript of Whistleblowing in the Workplace - Mason Hayes & Curran€¦ · • The investigation procedure...
9
Penalisation
10
Potential Difficulties
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
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)
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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
Whistleblowing Hotlines
EU/US tension in approach
And: No EU passporting possible
Do you seek forgiveness, or ask permission?!
CNIL France 2005
McDonalds France +Exide Tech
2009 Dassaut Systemes
Germany?(Wal-Mart)
Sweden? (Key execs only)
15
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
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
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
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
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
Dealing with a Whistleblowing Investigation by a Third Party
Catherine Allen,
Partner
21
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
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
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
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
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 1990.
26
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
Q & A
29
Elizabeth Ryan,
Partner
Catherine Allen,
Partner
Jeanne Kelly,
Partner