Michael Clifford: Whistleblowing can be matter of life and death

The divide is between those who want a wrongdoing addressed once highlighted and those who want it to remain buried, says Special Correspondent Michael Clifford.

Michael Clifford: Whistleblowing can be matter of life and death

The divide is between those who want a wrongdoing addressed once highlighted and those who want it to remain buried, says Special Correspondent Michael Clifford.

BLOWING the whistle is not what it used to be. Since the enactment of the Protected Disclosures Act (PDA) in 2014, those who wish to report wrongdoing appear to have been somewhat emboldened.

According to Transparency International calls to its helpline from whistleblowers increased from 15% of all calls in 2014, when the law was passed, to 27% by 2016.

The helpline, which was set up in 2011, has fielded more than 900 calls from employees, inquiring about how to report wrongdoing, asking for advice and from whistleblowers themselves.

“This [the increase] suggests that the enactment of the PDA, which came into effect in July 2014, has had an impact on the number of whistleblowers calling the helpline,” the Speak Up report stated.

Since 2014, there has been a number of high-profile cases of whistleblowing. Some of these illustrate that there is no template for a whistleblower and that the reporting of wrongdoing is not confined to any particular stereotype of individual.

The story of Sgt Maurice McCabe is the obvious one. His complaints of malpractice in An Garda Síochána has resulted in a commission of investigation examining his claims of malpractice, and now a public tribunal examining allegations that he was the subject of a smear campaign.

Sgt McCabe’s odyssey began before the PDA came into law, and is notable for his persistence and guile in defending himself at a time when legal protections were relatively threadbare.

There have been others which are also unique.

Earlier this year, the chief executive of Independent News and Media Robert Pitt made a protected disclosure about what he considered to be wrongdoing in the company he ran.

He had been involved in a dispute with the chairman of INM, Leslie Buckley, about whether a potential purchase of Newstalk FM was in the best interests of the company.

Once he made the disclosure — and irrespective of whether it is ultimately found to have substance — he was protected from any possible repercussions.

During the year this newspaper highlighted the case of two whistleblowers in the Defence Forces who reported on the lack of safety in the use of hazardous chemicals.

The Grace case, also first reported in the Irish Examiner, came to light when two whistleblowers alleged there was sexual abuse in a foster home, but that the HSE ignored the reports and left the girl known as Grace in the home for 17 years.

Both claimed that they suffered threats as a result of the disclosure with one claiming there was misinformation spread about her to discredit her.

Just as the INM case shows the positive protections that are afforded in the PDA, the treatment of the whistleblower in the Grace case illustrates the shortcomings in the law.

The Grace case is referenced in the Speak Up report in the context of the culture within the HSE towards whistleblowers. Public perception — and the number of calls to the helpline — associates whistleblowing primarily with the gardaí. Yet it is in the HSE that the greater number of cases arise and where there is a more pronounced culture of retaliation against whistleblowers. The Public Concern at Work helpline in the UK has had a similar experience with calls about the National Health Service.

“It is not clear why whistleblowers appear to be more likely to suffer reprisal in the health service than in any other profession or sector,” the report states.

“It is clear, however, that where they do, patient safety is placed as risk.

“Whistleblowers are the most likely to encounter and draw attention to harmful practices in health services. The protection of whistleblowers and promotion of whistleblowing can therefore be a matter of life and death.”

One shortcoming in HSE policy highlighted in the Speak Up report is the use of a provision for “good faith” reporting of wrongdoing under health legislation, in which the motives for reporting are considered. This, of course, is a cop-out.

The main issue is whether or not there is wrongdoing and questioning the motives merely distracts from the main issue, which, as pointed out in the Transparency International report, could be a matter of life and death.

Questioning the whistleblower’s motives is not confined to the health service. In January, the Disclosures Tribunal will examine whether elements in the gardaí engaged in an attempt to question Sgt McCabe’s motives for reporting wrongdoing in order to discredit his allegations.

There is some good news in the report. The Integrity At Work survey contained therein questioned 1,150 employees and employers about attitudes to whistleblowing. It found that around one in 10 employees had, during their career, reported wrongdoing. The majority of these felt they didn’t suffer any repercussions as a result.

However, 21% of employees did feel that they had been subjected to some form of retaliation.

Invariably, it is this cohort that end up in the public domain. Reporting on the plight of whistleblowers can be a double-edged sword. On one hand, the exposure of retaliation brings the matter out in the open, increasing the likelihood that it might be addressed, and acts as a warning to those disposed towards affecting retaliation.

It also, however, highlights what can befall whistleblowers in certain areas. For instance, knowledge of the experience of Sgt McCabe for one, would be unlikely to act as a catalyst to others in An Garda Síochána to report wrongdoing.

In this regard, the law does, as Transparency International points out, require further protections.

Every company, agency and sector is susceptible to wrongdoing. The divide is between those who want it addressed once highlighted and those who want it to remain buried. The latter option inevitably leads to further problems, not least the deception involved in covering up.

We’ve seen plenty of that in recent years. Only heightened vigilance will ensure that those who wish to report wrongdoing can feel confident enough that their complaints will be addressed and no retaliation will ensue. The concerns of whistleblowers need to be listened to rather than buried.

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