A former employee claimed a right under the Protected Disclosure Act to retain confidential information relating to a patient in the care of the employer.

The former employee claimed that crimes by other staff members had been committed against the patient and that no action had been taken by the employer.  The former employee believed that she was entitled, and needed, to retain the confidential information for future disclosures to certain bodies.  When asked to return the confidential information, she told the employer in writing to, “Get stuffed, bring it on”.

The Protected Disclosures Act, commonly known as the “whistleblower legislation”, exists to:

  1. Facilitate the disclosure and investigation of matters of serious wrongdoing in or by an organisation; and
  2. Protect employees who, in accordance with the Act, make disclosures of information about serious wrongdoing in or by an organisation.

The ERA found that facilitation and investigation of serious wrongdoing did not require the former employee to retain the confidential information and it ordered her to return it to the employer.

The ERA also found that the confidential information the former employee sought to retain was not about a “serious wrongdoing”.  This wasn’t a big issue because although the Act defines what actions and inactions constitute serious wrongdoing, there is a fall back provision which requires information the employee believes on reasonable grounds to be about serious wrongdoing to be treated as if it were about what the Act defines as serious wrongdoing.

Where an employee does disclose information in accordance with the Act however, that employee is afforded certain protections, including a high level of confidentiality.

This can sometimes cause difficulties for employers where information is provided under the Act by an employee with an expectation that the employee’s identity will be kept strictly confidential.

It may be that the employer can use the information provided as a catalyst to make further enquiries.  Otherwise, to identify the disclosing employee, the employer will require either written consent by that employee or be satisfied that disclosure of identifying information is essential to the effective investigation of the allegations.

If you have been approached by an employee wishing to disclose information under the “whistleblower legislation”, or if you are interested in updating or implementing internal procedures for disclosing information, please feel free to call one of our employment team on 04 473 6850.