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Protecting the Identity of Whistle-blowers - A Stark Lesson

Julie Austin



In an article published by on 10 April 2017, it emerged that Jes Staley, the CEO of British bank Barclay’s, was to be severely reprimanded for his attempts to uncover the identity of a whistle-blower who had "concerns of a personal nature" about an unnamed senior employee. In relation to Mr Staley’s attempt to uncover the identity of the whistle-blower, an independent investigation of Staley’s actions, “found, and the [Barclay’s] board has concluded, that Mr Staley honestly, but mistakenly, believed that it was permissible.” Despite the embarrassment the incident has caused Barclay’s, its board intends to reappoint Staley as CEO at their annual general meeting on 10 May 2017. On both sides of the Atlantic, further investigations are now underway. With the introduction of the Protected Disclosures Act 2014 (the “Act”), it is imperative that businesses establish clear policies in relation to whistle-blowing. The Act provides whistle-blowers with a wide range of protections (e.g. immunity from criminal prosecution relating to the disclosure, injunctions preventing their dismissal) and can provide whistle-blowers with compensation in respect of any connected dismissal regarding the making of a protected disclosure of up to five year’s remuneration. Under the Act, the identity of a whistle-blower may only be disclosed in a limited number of circumstances. Therefore, it will be difficult for organisations to balance the discloser’s right to anonymity while also balancing the contrasting right of an accused employee to know the identity of their accuser. For employers, the pertinent issue will be to assess whether – in order to afford efficacy to an investigation into a purported wrongdoing – it is necessary to disclose a whistle-blower’s identity. This will depend on a variety of factors, from the severity of the allegations, to the potential costs of a claim under the Act should the whistle-blower suffer any loss incurred as a result of disclosing their identity. The ongoing Barclay’s experience should be seen as a ‘word of warning’ for Irish employers, whether in the public or private sectors. It is advisable that all employers introduce a protected disclosure policy (or amend the one they already have in place if it does not comply with the Act).  The policy needs to encourage employees to make disclosures internally, as opposed to making them to the media, and it is likely that the existence of a policy will be very important when an employer is defending claims related to the Act itself.