Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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806. To ask the Minister for Health the options open to a person employed by the HSE who would like to make a protected disclosure regarding practices in their workplace that they are of the view are covered by the whistleblowing legislation; and if he will make a statement on the matter. [54916/17]

Simon Harris (Wicklow, Fine Gael)
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A protected disclosure is defined in the Protected Disclosures Act 2014 as a disclosure of information which, in the reasonable belief of a worker, tends to show one or more relevant wrongdoings came to the attention of the worker in connection with the worker’s employment; and is disclosed in the manner prescribed in the Act. The definition of the term “worker” used in the legislation includes current and former employees, independent contractors, trainees and agency staff. Prior to the enactment of this Act persons employed by the HSE could make protected disclosures to an Authorised Person under the Health Act 2004 (as amended in 2007). Some sections of this legislation are also still in force.

Section 5 of the 2014 Act provides protection for workers who disclose information in relation to the following wrongdoings:

a. the commission of an offence;

b. the failure of a person to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services;

c. a miscarriage of justice;

d. a danger to the health and safety of any individual;

e. damage to the environment;

f. an unlawful or otherwise improper use of funds or resources of a public body, or of other public money;

g. an act or omission by or on behalf of a public body that is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; or

h. information tending to show any matter falling within any of the preceding paragraphs (a) to (g) has been, is being, or is likely to be concealed or destroyed.

A worker must make a disclosure in the manner set out in the Act to be entitled to the protections of the Act. Different standards apply depending on the person or body to whom the worker discloses.

A disclosure may be made to the employer. The HSE encourages all workers to make disclosures internally to their employer in the first instance. Such disclosures will be taken seriously and the worker making a protected disclosure, as defined by and in accordance with the Act, will be entitled to the protections set out in the Act.

Alternatively, a worker may make a disclosure to persons other than their employer in certain circumstances. Different requirements need to be met in different cases, as set out at (a) to (e) below:

a. Other responsible person

Where the worker reasonably believes that the wrongdoing relates solely or mainly to the conduct of a person other than the worker’s employer or to something for which that other person has legal responsibility, then the worker may disclose to that other person.

b. A prescribed person

Certain persons are prescribed by Statutory Instrument 339 of 2014 (“SI 339”) to receive disclosures (“prescribed persons”). `This includes the heads or senior officials of a range of statutory bodies.

A worker may make a disclosure to a prescribed person if the worker reasonably believes that the relevant wrongdoing falls within the description of matters in respect of which the person is a prescribed person. In the case of such a disclosure, the worker must believe that the information disclosed, and any allegation contained in it, are substantially true.

c. A Government Minister

If a worker is or was employed in a public body, she/he may make a disclosure to a Minister on whom any function related to the HSE is conferred or imposed by or under any enactment. Accordingly, workers covered by these Procedures may make a disclosure to the Minister for Health, the Minister for Finance or the Minister for Public Expenditure and Reform, and any other Minister on whom any function related to the HSE is conferred or imposed by or under any enactment.

d. A legal adviser

A disclosure may be made by a worker in the course of obtaining legal advice from a barrister, solicitor, trade union official or official of an excepted body (an excepted body is a body which negotiates pay and conditions with an employer but is not a trade union as defined in section 6 of the Trade Union Act 1941).

e. Alternative external disclosures (in very limited circumstances)

It is preferable in most circumstances to disclose to the employer and, if that is not appropriate, to one of the disclosure options at (a) to (d) above. It will rarely be appropriate to make alternative external disclosures where the disclosure could be dealt with through one of the other disclosure options above. There are stringent requirements for alternative external disclosures to qualify as protected disclosures under the Act.

I am committed to facilitating the disclosure of wrongdoing and encouraging workers to make protected disclosures at the earliest possible opportunity. I would also encourage workers to make disclosures to their employer in the first instance and to use the internal procedures provided.

Such disclosures will be taken seriously and the worker making a protected disclosure will receive appropriate protection as set out in the legislation. There is an onus on the HSE to address any disclosure made, to conduct an investigation where warranted and to address all findings of that investigation that require attention. The legislation emphasises that workers will be protected from penalisation and from dismissal for having made a protected disclosure.

The contact details for the Authorised Person in the HSE are:

By post:Office of the Authorised Person, PO Box 11571, Dublin 2;

By phone: 01-6626984 or 071-9834651 (10am-1pm and 2-5pm; Monday-Friday);

By email:protected.disclosures@hse.ie.