Nochtadh Cosanta

1. Introduction

This document sets out An Coimisiún Toghcháin’s (ACT) policy and procedures on Protected Disclosures in the workplace under the Protected Disclosures Act 2014 (as amended by the Protected Disclosures (Amendment) Act 2022) (the Act). The Act enables workers to raise a concern regarding potential wrongdoing in the workplace. The Act ensures that safeguards exist to prevent reprisals against them.

The Act requires every public body to:

• establish and maintain procedures for dealing with protected disclosures; and

• provide written information relating to these procedures to workers.

The vast majority of concerns that workers might experience in their day to day working environment can be addressed through normal workplace reporting. This policy refers to specific wrongdoings as identified within the legislation.

Protected disclosures can assist in uncovering wrongdoing within an organisation and this can prevent accidents, financial issues, criminal offences and regulatory breaches. Disclosures of wrongdoing can also result in early detection and remediation of issues and limit the reputational damage to ACT. ACT is committed to preserving the highest standards of ethical behaviour, probity and accountability, and recognise that our workers (and others covered by the amended legislation) play a key role in achieving these aims. Wrongdoing such as corruption or malpractice, or the concealing of these, can have a devastating effect on the reputation of ACT, the outcome of our processes, and the organisational culture in ACT.

2. Purpose

ACT has put this policy in place to ensure there are formal procedures for reporting concerns and that people know that they can safely make such disclosures.

• All workers are protected from victimisation, harassment or disciplinary action as a result of any disclosure, where the disclosure is made in good faith and is not made maliciously or for personal gain. Where disclosures are made in the public interest, workers will have statutory protection in Ireland under the Protected Disclosures Act 2014;
• Any disclosures will be investigated;
• ACT will take all reasonable steps to treat disclosures made through this policy in a confidential and sensitive manner. The organisation is not accountable for maintaining anonymity where the whistle-blower has told others of the alleged misdemeanour.

ACT will support those who make such disclosures that they reasonably believe demonstrate a suspected wrongdoing.

ACT undertakes not to ask a worker or former worker to waive their right to make a protected disclosure under any circumstances.

3. Scope

This policy applies to all workers as defined in section 3 of the Protected Disclosures Act 2014 (as amended) (No. 14 of 2014) (the “Act”). This policy covers situations where an individual (the “Whistle-blower”) raises a concern about a risk, malpractice or relevant wrongdoing which affects others such as clients, suppliers, other workers, the organisation or the public interest.

4. Making a Disclosure

The following individual has been designated to follow up on concerns raised through this procedure:

• Karen Kehily, Head of Corporate Services

You may make your report in writing by email to a dedicated mailbox – disclosures@electoralcommission.ie – to which only the above designated persons have access. Before raising a concern, you may wish to speak with the designated person, who can explain in more detail how your report will be dealt with.

In the event that your report relates to the above designated person, you may instead make your report directly to the Human Resources Manager.

Workers and others making a disclosure (and the person to whom the disclosure is made) must use discretion and commit to keeping the reporting and investigation process confidential where possible.

All disclosures should, where possible, be made in writing or made electronically. It is sufficient for the discloser to state that they have a reasonable belief that a wrongdoing has occurred, is occurring, or is likely to occur; however, it would be helpful if the discloser could include any of the information below that they are aware of in relation to their concern. Any reports setting out concerns should be factual and may include the following points, where any of this information is known, in relation to a wrongdoing that has occurred, is occurring or is likely to occur.

The disclosure should be submitted to the appropriate person and should include the following at a minimum:

• date submitted;
• subject;
• what has occurred (or is thought to have);
• when it occurred and whether it is ongoing;
• where it occurred;
• who was involved;
• has ACT been put at risk or suffered a loss;
• has it happened before;
• has it been raised to anyone, either in ACT or externally, and details of this;
• are there any other witnesses;
• is there supporting information or documents;
• how the matter came to light;
• confidential contact details of the disclosure (as appropriate).

If a disclosure is made verbally, it will be documented by the recipient and the record will include the discloser’s name in addition to the information outlined above (where available).

The detail of the disclosure should be sufficient to enable a person without prior knowledge to understand the issue.

Workers are not entitled or required to investigate matters themselves to find proof of their suspicion and should not endeavour to do so. Workers are required to disclose what they consider to be an alleged wrongdoing based on a reasonable belief that it has, is or will occur. The term ‘reasonable belief’ does not mean that the belief has to be correct. A worker is entitled to be mistaken in their belief, so long as their belief was based on reasonable grounds. No worker will be penalised simply for getting it wrong, so long as the worker had a reasonable belief that the information disclosed showed, or tended to show, wrongdoing.

5. Confidentiality

ACT will take all reasonable steps to treat disclosures made in a confidential and sensitive manner. The focus will be on the wrongdoing rather than on the worker making the disclosure. ACT will not disclose the worker’s identity without their consent, unless required by law or if it is necessary for the effective investigation of the relevant wrongdoing. Every effort will be made to notify the worker in circumstances where their identify may be disclosed.

6. Anonymous Disclosures

The person making the disclosure is encouraged to identify themselves wherever possible. The decision whether to investigate anonymous disclosures is at the discretion of ACT, taking into account the seriousness of the issue raised, the credibility of the concern, and the capacity of ACT to investigate an anonymous allegation. In order for ACT to ensure that a discloser can avail of protections available under the Protected Disclosures Act, ACT would need to be aware of their identity.

7. Assessment, Investigation and Outcome

The designated persons listed on page 3 will be responsible for the assessment and investigation of all disclosures in a timely and appropriate manner.

The Head of Corporate Services will carry out an initial assessment of the disclosure to determine whether it falls within the scope of this Policy and whether it is necessary to carry out an investigation into the disclosure (including whether there is prima facie evidence of wrongdoing). This assessment will be based on an appropriate risk prioritisation of the requirement for investigation and the nature and extent of the investigation that should be carried out (ranging from a detailed and extensive investigation of serious wrongdoings to less formal approaches for reports that are assessed to relate to less serious wrongdoings).

The Head of Corporate Services will communicate the outcome of the assessment to the person who made the disclosure (including whether the matter will be investigated further, and what action has been taken, or whether no action will be taken) and to the recipient (if appropriate).

The Office will acknowledge your report within 7 days. Feedback will be provided to the reporting persons at all key stages of the process and within 3 months of the initial report (and at 3 monthly intervals thereafter, on request, should the investigation process extend that far).

If it is determined that an investigation will be held, the scope and terms of reference of the investigation will be determined prior to the investigation. The Head of Corporate Services will appoint an investigator (who was not previously involved at assessment stage) to conduct the investigation. Some matters may require that the investigation will have to be carried out by a specific professional or subject matter expert or it may need to be reported to and investigated by An Garda Síochána. In some other cases, the Head of Corporate Services may also appoint an external third party to investigate the matter, in circumstances where the third party has relevant and necessary specialised knowledge of the subject matter. The Head of Corporate Services will update the discloser periodically (if possible) on the progress with the investigation, and in line with the timelines set out previously.

The discloser may be required to meet with the investigator and provide further information. The investigator will report on his/her investigation. Investigations will be carried out in an impartial manner and fully consistent with due process. The confidentiality of both the worker making the report and the person against whom the allegation was made must be protected.

The investigator’s report will be sent to the Head of Corporate Services and they will determine what, if any, action should be taken. The Head of Corporate Services will keep the discloser informed of the progress of the investigation and the likely timescale. Sometimes the need for confidentiality, or to facilitate a fair and comprehensive investigation, may prevent the Head of Corporate Services from acting on specific details of the investigation. The Discloser is required, as part of this Policy, to treat any information sent to them as part of this process as strictly confidential and not to reveal any such information to a third party.

From time to time, it may not be possible to provide details of the outcome of an investigation process to a discloser in order to respect the rights of the subject of a disclosure. A discloser will be informed that appropriate action has been taken but is not generally entitled to know what that action was.

If the Head of Corporate Services concludes that the worker has made a false allegation, deliberately or maliciously or with a view to personal gain, they may be subject to disciplinary action. Any relevant person found abusing the process by deliberatively raising false allegations or repeating allegations previously found to be unsubstantiated may be subject to disciplinary procedures. In such circumstances the worker would not have any protection under the Act. Such false allegations, in addition to the impact on the persons to whom they relate, are very damaging to the objectives of the Act, and will be treated as a very serious disciplinary matter.

In the case of a disclosure where it is determined by the Head of Corporate Services that there is no prima facie case to answer, a summary of the disclosure will be reported to the Audit and Risk Committee and members of the Commission.

Following any investigation, and subsequent decision made by the Head Corporate Services, a written report will be submitted to the Audit and Risk Committee and Commission members, containing the following information:

• a description of the disclosure and the findings of the investigation;
• the effect the disclosure had on ACT, if any;
• the means of perpetrating the malpractice or impropriety;
• the measures taken to prevent a recurrence;
• the action required to strengthen further responses under this policy;
• a conclusion as to the way forward;
• whether any report has been made, or is required to be made, to any third party;
• any other relevant material;

Summary Timeline – Assessment, Investigation and Outcome
Disclosure made	Day 1
Report Acknowledged	Day 7
Feedback provided	At all key stages and within 3 months of the initial report and 3 monthly intervals thereafter.

8. Protection and Support for Persons Making a Disclosure

ACT aims to encourage openness and will support those who raise genuine concerns under this policy, even if they turn out to be mistaken. ACT will not tolerate any penalisation of those who make a report of possible wrongdoing based on a reasonable belief and will treat any acts of penalisation or attempted penalisation as a disciplinary matter (those suffering penalisation may also take separate legal action under the Act). Penalisation of a reporting person is now also a criminal offence.

Persons who make disclosures under this policy will not suffer any detrimental treatment as a result, including:

• suspension, lay-off or dismissal;
• demotion or loss of promotion opportunities;
• transfer of duties, change of location of work, reduction in wages/fees, or change to working hours;
• imposition or administering of any discipline, reprimand or other penalty (including financial penalty);
• unfair treatment;
• coercion, intimidation or harassment;
• discrimination, disadvantage or unfair treatment;
• injury, damage or loss;
• threat of reprisal;
• any other unfavourable treatment connected with raising a concern.

A discloser, who believes that they are being subjected to penalisation as a result of making a disclosure under this policy, should notify the Protected Disclosures Recipient immediately, who will cause the matter to be appropriately investigated. The procedures under this policy will apply to the allegations of penalisation.

9. Protection and Support for Persons Against Whom an Allegation has been made

ACT will protect any worker against whom an allegation has been made at all times during the investigation process. As set out previously in this policy, they will be provided with full information on the allegation against them and be given every opportunity to respond fully to such allegations. They can opt to be accompanied at any interviews (and other ACT staff will be given the time to attend such meetings should the person against whom any allegation has been made opt to be accompanied to meetings by a colleague). They will also be able to receive advice on the Policy from the ACT contact person, or any other specified member of senior management not involved in the investigation. They will also have recourse to the Employee Assistance Service and may make appointments to attend within working hours. No conclusions will be drawn until the investigation, and any appeals process, have been exhausted.

10. Review of Decisions

In the event that the discloser is not satisfied with:

(a) the decision made to disclose the identity of the discloser;

(b) the outcome of any preliminary evaluation/investigation undertaken in respect of the Disclosure;

(c) the outcome of any preliminary evaluation/investigation in respect of any complaint of penalisation;

The discloser can submit a request for review in writing to disclosures@electoralcommission.ie for an independent evaluation of the matter. This decision will represent a final internal decision on the matter.

11. Reporting

The Head Corporate Services will maintain a record of all allegations received, and investigations conducted under this policy. A quarterly report will issue to the Audit and Risk Committee and will include information on:

• the number of protected disclosures made;
• the number of disclosures investigated and not upheld;
• the number of disclosures upheld and actions taken in response to these.

An Annual Report will also be prepared by 30^th June each year. This report will not identify any persons involved and will contain information on the number of protected disclosures, the actions taken, and any further information deemed appropriate.

12. Policy review

The policy will be reviewed at minimum intervals of three years or when required by the ACT Management Team.

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