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Q&A: Designing an effective speak-up programme webinar – Ireland

Answers to the questions received during our webinar

Viviane Joynes Viviane Joynes

    On 31st March 2020, Viviane Joynes, Managing Director of EQS Group’s UK and Ireland subsidiary, hosted a webinar about designing an effective speak-up programme in Ireland. We were delighted to be joined 3 expert panellists: Stephanie Casey (SC), the Integrity at Work Programme Manager for Transparency International Ireland, Gráinne Madden (GM), founder of GMJ Associates and Clive Kelly (CK), a Director at the Association of Compliance Officers in Ireland.

    The topic of whistleblowing is becoming especially relevant in Ireland with the introduction of the EU Whistleblowing Directive which must be transposed by December 2021. It introduces a number of new provisions including a requirement that all organisations with over 50 employees have whistleblowing arrangements in place.

    During the webinar, we had a fascinating discussion around the main aspects to consider when implementing a speak-up programme including: tone from the top, policies and procedures, speak-up facilities, communication and training and finally how to monitor and evaluate programmes.

    We received a number of questions from participants that we weren’t able to answer during the webinar due to time constraints. We have presented them along with responses from our panellists here.

    Webinar | Designing an effective speak-up programme – Ireland

    Watch the replay for free

    General questions

    Are there any positive examples in wider society where some spoke up and it ended up well? We all know about the Garda McCabe example.

    SC: According to the 2016 Integrity at Work Survey, 17% of people have witnessed some form of wrongdoing during their working life and of these, 63% chose to share their concern with someone who could investigate, stop or bring attention to the wrongdoing. Of those that spoke up, 21% of respondents said that speaking up had a negative impact on them, 28% said it had a positive impact and 50% said it had no impact. It would be great to hear the stories from the 28% but the reality is that people don’t generally consider themselves as ‘whistleblowers’ and once a report has been dealt with effectively, they generally wish to get on with life as normal. To see the full survey see page 36 of the Speak Up Report 2017.

    GM: “X thanked by CEO and is promoted as a reward for speaking up” doesn’t make for an interesting headline unfortunately. Communicating good news stories around speaking up internally can however be a good way to build trust.

    CK: Unfortunately positive examples are hard to find not just nationally but internationally – if you look at Professor Kate Kenny NUIG research and her most recent book “Whistleblowing – towards a new theory” where she interviews a number of high profile national and international whistleblowers sadly similar negative outcomes prevail. I have heard of cases where much later on the whistleblowers concerns were vindicated (Eric Ben Artzi and DB is one example) however a case of too little too late with damage already done. We must not however forget that for the majority of whistleblowing cases they are dealt with behind closed doors and do not become the high profile cases that we see in the press. Therefore experiences differ as Stephanie has said.

    What’s the view on incorporating Speak Up responsibilities within the new SEAR regime to drive change?

    GM: I’m not clear whether the question is about incorporating Speak Up responsibilities into the Senior Executive Accountability Regime (SEAR) in terms of designating the named executive responsible for oversight of an organisation’s Speak Up system or if the question is whether Speak Up responsibilities should be enhanced overall in order to pinpoint where senior executives are failing in the carrying out of their duties. Either way it seems to be a sensible action. Even if it is not outlined as a must do, it’s clear that the Central Bank of Ireland (CBI) regards effective speak up arrangements as one of indicators of what good looks like in relation to culture so firms should be giving this attention. These quotes demonstrate this quite clearly:

    “Actively celebrating, incentivising (e.g. recognising and promoting), those who come forward to identify issues and behaviours that are not in line with or at least risk factors regarding the espoused values and desired culture of the firm.”– (Deputy Governor Ed Sibley, Is it legal? A Question of Culture)

    “Firms are open to constructive internal feedback and have in place formal and informal channels to encourage and support employees to ‘speak up’.” (Director General Dervilla Rowland, The Senior Executive Accountability Regime: The Central Bank’s Expectations and Insights for Boards)

    The Senior Managers and Certification Regime (SMCR) in the UK includes the requirement for a named senior executive to be a whistleblowers’ champion.

    CK: The central Bank of Ireland couldn’t be clearer today that there is an expectation on PCF’s approved persons to “speak up” in the current regime. As the SEAR regime will most likely include all PCF’s (with perhaps the exception of INEDs) arguably it won’t have to be specifically mentioned – as has been mentioned above by Gráinne its clear that the CBI and other regulators worldwide see the existence of an effective speak up regime as an essential element of an effective culture.

    What is your view on financial rewards for whistleblowers? Would it be a good idea to encourage whistleblowers who won’t come forward based on altruistic reasons?

    SC: This is an interesting area to explore further, perhaps in a future webinar. American companies (including overseas offices) are subject to Section 922 of the Dodd Frank Act (introduced in 2010) which provides a cash bounty for whistleblowers reporting securities violations to the Securities and Exchange Commission (SEC). The bounty is 10-30% of any settlements or sanctions of over $1 million that the SEC recovers. The SEC has awarded over $396 million to 77 individuals since issuing its first award in 2012.

    GM: And also in the USA, the False Claims Act (which dates from Civil War times) allows for whistleblowers who disclose fraud against the government to be paid a percentage of money recovered by the government. One can see the sense in it as it potentially saves huge sums for the taxpayer. I find it interesting that when I tell students about the False Claims Act they react with, “Oh so that’s why they blew the whistle, just to get the pay out”. So maybe it encourages a negative view of whistleblowers which is not a good thing. Of course, it’s no guarantee of a pay out and many of those who get the pay out have endured years of retaliation or working undercover for the government to prove the case.

    If we look at the literature, Miceli et al (Miceli, M.P., Near, J.P. & Morehead Dworkin, T. (2009) A Word to the Wise: How Managers and Policy-Makers can Encourage Employees to Report Wrongdoing Journal of Business Ethics) do suggest that financial incentives may encourage employees to report wrongdoing but they also say that it’s difficult to research it properly since so few organisations actually do it.

    In line with what we said in the Webinar, developing a culture in which people see that their leaders welcome hearing about problems and being given the opportunity to resolve them is crucial. And if leaders are serious about that, they will seek to reward such behaviour through for example, a simple thank you, promoting those who speak up, giving them opportunities to work on high-profile projects. The actions taken would of course depend on whether the person speaking up had sought to have their identity protected or not.

    CK: In my view financial protection à la Dodd Frank act would help here in Ireland as the protections currently in place aren’t strong enough, are largely not trusted and many would feel that to speak up would be the death of their career, therefore some ability to recoup some financial loss would be welcomed. In principle however I don’t think “incentivising” speak up arrangements always has the desired effect or even the expected effect (if that is increased levels of speak up).

    Do the protected disclosures regulatory requirements extend to Charities and Non-Profits as well as financial institutions?

    SC: The Protected Disclosures (PD) Act applies to all workers, regardless of their place of employment. The requirement to have established systems for the receipt of whistleblowing reports and to publish the number of reports received on an annual basis currently applies to public sector bodies only. However, the EU Whistleblower Protection Directive will extend this requirement to private sector bodies of over 50 employees. The Directive also extends protection to volunteers, which is a very positive step for charities.

    GM: And it’s worth noting that the definition of worker is extremely broad in the act. It’s not only employees. The PD Act is primarily about protecting workers from penalisation for speaking up. There is no requirement currently for organisations that have workers to have PD policies and processes (other than public sector bodies as Stephanie has mentioned above) though personally I think they’re leaving themselves exposed if they don’t. And as referred to by Stephanie this will change when the EU Directive is transposed.

    Could you possibly expand on the legal protection afforded to those who speak up please?

    SC: I would advise reading the Speak Up Safely Guide for a clear and concise overview.

    GM: I would suggest all that are interested in this topic read the Speak Up Safely guide. It’s the best explanation I know of this quite complex area.

    Does the legislation allow for fines/penalties on employers who take “action” against a whistleblower?

    SC: A worker who believes they have been penalised as a result of making a disclosure can take an action against the employer and if successful, the court/tribunal can award up to five year’s salary. The worker can commence action without the usual provision of one year of continuous employment.

    People will generally choose to raise their concern where they feel safe to do so but the EU directive demands one channel which has trained staff to deal with the concerns. How can organisations make sure people turn to the right channel?

    GM: All the research points to choice of reporting channels being best practice. If a worker feels uncomfortable reporting to someone they need to have another option. The reality is that most people will report a concern to their line manager and won’t necessarily label it as a protected disclosure or whistleblowing (relating to that, it’s important to note that someone not labelling a concern as a PD doesn’t mean it’s not a PD. Someone labelling their report as a PD doesn’t mean that it is one). In fact one of the reasons it’s so important that line managers are trained about PD is to help ensure they spot one when they receive it. I’m not aware that the EU directive demands one channel with trained staff.

    From the EU Directive: “Provided the confidentiality of the identity of the reporting person is ensured, it is up to each individual legal entity in the private and public sector to define the kind of reporting channels to establish. More specifically, the reporting channels should enable persons to report in writing and submit reports by post, by physical complaint box(es), or through an online platform, whether it be on an intranet or internet platform, or to report orally, by telephone hotline or other voice messaging system, or both. Upon request by the reporting person, such channels should also enable reporting by means of physical meetings, within a reasonable timeframe.”

    In the context of Speaking Up, in your experience are persons receiving protected disclosures aware of their obligations under Section 19 Criminal Justice Act 2011 where a ‘white collar’ type crime is reported to Gardaí as soon as practicable?

    GM: When we deliver training on the PD Act I find there is a high level of awareness of this and of other statutory reporting requirements that people in the particular organisations may face.

    Policies and procedures

    In relation to the policy being bespoke for the culture of the company, would the panel go so far as to recommend that the general staff body are included in the development of the policy / procedures?

    SC: We regularly work with our members to produce a draft policy which we then sense-check with senior staff through a training session. This frequently identifies issues and questions that the team responsible for the policy has not considered.

    GM: In addition, it’s useful to ‘sense-check’ with more junior staff as well to see how comprehensible the policy is for people in the organisation. Are there things that could easily be misinterpreted by those who were not involved in the development of the policy?

    CK: In short yes – all stakeholders including employees should be involved.

    What support should be put in place for colleagues who do speak up?

    GM: The question seems to imply that people who speak up need to be supported because it will be a negative experience. The 2016 Integrity at Work Survey referred to above shows this is not the case much of the time. The best support is a culture where people don’t need to be afraid and reports are welcomed. It’s important that retaliation against someone for speaking up is not tolerated and is shown not to be tolerated. This should be clearly stated as misconduct in your policy and disciplinary action taken if it is found to occur. This means there should be a clear process for people to report any retaliation suffered. If the discloser wants their identity to be protected, steps must be taken to ensure this is done to the best of your ability and that anyone involved in the process of assessing or investigating the disclosure understand their responsibilities in relation to this. Of course there will be instances where people who speak up may find it to be highly stressful and they should be encouraged towards appropriate supports such as your EAP service.

    CK: I agree with the above with a small additional point that speak up incidents must all be treated consistently with the same support for all people who disclose – as was said in the webcast, put yourself in the shoes of the whistleblower when designing the support and processes.

    In a potential scenario where a W/B Policy & team exist ‘in-name-only’ and key staff have justifiably little confidence in making any Reports, what can they consider as their alternative (or next) Port-of-call?

    SC: Disclosures can also be made to union representatives and through a number of external channels. Additional criteria apply to using external channels. It is best to seek advice before choosing to go down this route, please see the Speak Up Safely Guide – pages 9 to 13 in particular.

    Should I be worried about irrelevant/frivolous reports coming through the speak-up channel?

    GM: I’d be more worried about serious issues not being reported! I’m not sure that it matters if irrelevant or frivolous reports come to you except that it may indicate a culture where people feel that it’s the only way small stuff will get done and that would be cause for concern. As part of your PD process you screen reports that are received and if it is deemed that they should not be dealt with under the PD policy you go back and explain that to the employee. Employees may not be in possession of all the information so they may be worried about something which you know is not a problem because you have all the facts. But far better that they report what they suspect might be an issue than not report it.

    CK: I strongly agree with Gráinne on this – your organisation has to “listen” and in many cases whilst something seems frivolous there may be an indication of something more serious. Other than the “obvious” frivolous or vexatious incidences these other “irrelevant” issues should be seen as potential risk indicators for other issues.

    Communication and training

    How should an effective framework be rolled out (in a manner that doesn’t question culture/colleagues)?

    GM: If ‘in a manner that doesn’t question culture/colleagues’ is a concern that by instigating a policy and process for whistleblowing it implies the organisation has a bad culture or lots of bad employees, I can only say I’ve never seen that inference made by employees when a whistleblowing policy is rolled out. The focus should be on wanting to put things right if there is a chance of them going wrong. I think everyone accepts we live in an imperfect world and bad stuff can happen.

    To introduce a whistleblowing policy properly, people need to receive training, they need to understand the positive intent, they need a chance to discuss the policy and process the types of things that would be deemed reportable. They need to get a feel for what happens next when someone reports a concern and how the discloser is treated. They need to know that disclosures will be treated seriously and action taken to resolve.

    CK: I agree with Gráinne. The only thing I would add is that the messaging/communication around the roll out has to reflect that this is one element of developing and embedding an overall positive culture in the organisation. Sometimes how it is rolled out including using positive influencers across the organisation is more important than what it is you are rolling out (the mechanics).

    How often should the managers and Board receive training?

    SC: We provide training once a year to our members. This allows for new staff joining the organisation and also provides a refresher for existing staff.

    GM: I’d also suggest once a year is needed as a refresher.

    CK: Agreed.

    Monitoring and evaluation

    Should independently reviewed staff surveys be mandatory in all Financial Institutions?

    CK: At this stage most firms in most sectors are using staff surveys. For me the most important things are what questions you ask and if you listen to the responses. There are often questions regarding the anonymity of the replies but leaving this to one side as its often a red herring, listening to the detailed comments is very important and using some skilled people at interpreting these comments and following up can be useful (independent if necessary). In the initial phases of rolling out staff surveys and also where you think there might issues around transparency or lack of trust, stating that answers will be independently reviewed might help engender trust initially.

    GM: I would simply add that this is also important for other sectors like the transport sector, the health sector, the education sector? All have the capacity to create enormous harm.

    It is no doubt very difficult to generalise but is it possible to advise what should be an acceptable number of disclosures per number of employees in any organisation. e.g. 100 employees in financial services, expect X potential disclosures per annum/quarter?

    GM: I’ve never seen a ratio in any research. Since this is so related to the culture of an organisation, I don’t think it would be possible to give a figure. A high number of reports could indicate an organisation that had lots of problems or it could indicate an organisation where people are highly sensitised to potential problems. A low number of reports could indicate a place with few issues, or it could indicate a place where people feel unsafe reporting. Personally, I find it surprising when senior managers tell me with delight that they’ve never had any disclosures in their organisation. Quite a lot of people seem to think zero is a good number in this situation. I don’t.

    CK: I agree with Gráinne particularly the point/danger of misinterpreting (both positively/negatively) a low number of reports.

    Thank you again to Stephanie, Gráinne and Clive for their insights into designing an effective speak up programme.

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    Viviane Joynes
    Viviane Joynes

    Managing Director – EQS Group | Viviane is Managing Director of EQS Group’s UK Business. She has extensive experience of advising UK and European companies on their corporate governance, compliance and IR practices. Prior to joining EQS her roles included heading up the IR Services at Capita Asset Services (now Link Asset Services) and being Managing Partner of a corporate governance and communications consultancy.

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