Whistleblowing Legislation in Northern IrelandPosted in : Back to Basics on 30 January 2018
In the first of our 2018 'Back to Basics' series, Andrew Spratt, Associate Solicitor in the Employment & Incentives team at A&L Goodbody, offers a brief summary of whistleblowing legislation in Northern Ireland. Andrew outlines the circumstances in which an employee who has made a protected disclosure will be afforded protection under the Public Interest Disclosure (Northern Ireland) Order 1998.
Andrew discusses the Employment Act (Northern Ireland) 2016, (Commencement Number One) Order (Northern Ireland) 2017 which, despite the absence of a functioning legislative assembly, came into force on the 1st October 2017. He identifies and comments on its key provisions, highlighting the fundamental changes introduced by the legislation, namely, changes to the public interest test, removal of the good faith requirement and the elimination of the loophole on vicarious liability of employers, meaning employers will now be vicariously liable where a whistle-blower is subject to a detriment.
This morning I want to speak a bit about whistleblowing. The whistleblowing legislation began in 1998 with the Public Interest Disclosure (Northern Ireland) Order, which worked in tandem with the Employment Rights (Northern Ireland) Order 1996. And what it did was provide protection to workers who felt it necessary to raise issues about their employment, specifically those issues relating to any type of wrongdoing. And by raising those issues, those would have been in the interest of the public.
In order to receive the protection that is under that legislation, there must be a qualifying disclosure, and such a disclosure is allowed in the following six circumstances. Where criminal activity or a breach of civil law has occurred, is occurring, or is likely to occur. That a person has failed, is failing, or is likely to comply with any legal obligation to which he is subject. Or, where there is a miscarriage of justice which is going to occur, that has occurred, or may occur. Also, issues around health and safety, if that has been compromised, or is likely to be compromised. Or, where the environment has been, or is likely to be, damaged. And finally, where there is information indicating that evidence of one of those circumstances has happened, is likely to be concealed, or it has been destroyed. It makes no difference whether the circumstances leading to the breach is inside or outside of the UK, as long as either UK law or the law of another jurisdiction prohibits it.
Under the 1998 order, there needed to be a disclosure of information. Not simply an opinion or a hunch, but actual evidence that there was behaviour occurring as outlined above. Also, any such disclosure needed to be made in good faith, and proof the disclosure had not been made in good faith would be grounds for the protection to be removed.
Those protections were principally three-fold in nature. Protection from unfair dismissal, also unfair selection for redundancy because an individual had made a protected disclosure, and more widely, there's a protection from any form of detriment. This was the ground on which most whistle-blowing cases were predicated upon, that the individual had made a protected disclosure, and then they had suffered some form of ill-treatment amounting to a detriment, and tribunal action would often follow.
Earlier this year, and notwithstanding the absence of a functioning legislative assembly, the Employment Act (Northern Ireland) 2016, (Commencement Number One) Order (Northern Ireland) 2017 came into force on the first of October. This piece of legislation introduced changes to the public interest disclosure in Northern Ireland. Of key importance, these were the following issues.
The public interest test
The public interest test is a test which must be applied by a tribunal or a court, and must be met by the worker or employee, and is an objective test applied by a tribunal court and not the employer. A definition of what the term public is in terms of numbers or size, etc., is not defined. And so in some cases, personal interest and public interest can and will overlap. This means that the tribunals will need to take a host of factors into account and decide on a case-by-case approach for each case before them. However, what we think it means is that the term public will be interpreted widely, and does not necessarily mean that large sections of the public will need to be affected in order for disclosure to be made in the public interest.
One of the highlights of the changes, which has been the removal of the requirement to make a protected disclosure in good faith. In essence, this means that the predominant motivation of the whistle-blower may be something other than good faith. However, they have introduced a fetter to this, in that any compensation awarded in such cases can be reduced by a tribunal by up to 25% to reflect what is effectively bad faith or a predominant motivation such as malice or revenge, perhaps against a former employer.
Other changes have also introduced a power to enable the Department of the Economy to make regulations requiring a prescribed person or body to produce an annual report on disclosures of information that they have received from workers. This person or body are found in the lists to the schedules to the existing legislation, and they are periodically increased. In Northern Ireland there are around 40 of these persons or bodies which are currently required to provide these reports.
Finally, and also very importantly for employers, the loophole that had existed in the whistle-blowing law has now been closed, and now employers will be vicariously liable where a whistleblower is subject to a detriment. Being treated unfairly by a co-worker in the course of the co-worker's employment with the employer because they made a disclosure. A claim can be taken by the whistleblower against both the employer and the co-worker, whereas this was not previously the case. All-in-all, and given the recent changes in the law, mean that employers need to revisit their existing to ensure that they are up-to-date and that members of staff have training on those changes.
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