Can HR challenge a whistleblowing complaint?

Q: Can HR challenge the individual’s assertion that it is a whistleblowing complaint at the point the complaint is made or can we dismiss where we think the complainant is acting in bad faith or may even be lying?

Seamus: The whistleblowing legislation has been updated recently, just for anyone that’s not aware. So, from October 2017, our Northern Irish whistleblowing legislation has been brought in line with the position in GB. Really, the main thing there is the removal of the good faith requirement that we had at NGB. So, essentially, employees are no longer protected from the courts if the disclosure is made in bad faith and compensation then, if it is made in bad faith, can be reduced on the basis that there’s been a bad faith element to it. So, essentially, it doesn’t invalidate the claim, but it can reduce it.

I think from my own point of view in terms of whistleblowing, it’s something that I have noticed a significant increase in the past two to three years, particularly in relation to employment claims. My view is always that where there is a complaint made, that it should be treated cautiously and taken seriously.

Scott: There’s no limit on an award and you get injuries to feelings, effectively, for whistleblowing claims.

Seamus: Absolutely. I’ve had a couple of cases in the tribunal here. They’ve involved health and safety reports or reports to third-party statutory bodies or regulators and you look at the legislation and you do your best in terms of trying to deal with the claim that you have.

Scott: If somebody came to an employer saying, “That carpet is fraying and somebody could trip,” which is a genuine case in Northern Ireland that would be potentially a breach of a statute, health and safety at work that we’re looking at. Whether the person was motivated to have a go at the supervisor is neither here nor there.

Seamus: Irrelevant, yeah.

Scott: As far as it being a whistleblowing claim, it’s a genuine claim and therefore they are protected and you have to take it seriously because if they are dismissed, they have all the extra protections, including an unlimited award.

Seamus: Exactly. I think it’s important that where there’s a complaint, that it is investigated, that there’s a clear paper trail in terms of the investigation and that there’s an outcome in terms of that investigation as well. Now, the outcome could be, yes, you’ve raised a healthy and safety concern and we’re going to address it, but at times, there are circumstances that arise where there is a complaint, the employer doesn’t like it, thinks the employee is a troublemaker, any employment for less than one year and decides, “I don’t want this person in my employment anymore.”

That’s where I’ve seen the increase in the claims have been, ‘Well, they don’t have the statutory ability to bring the claim because of less than 52 weeks.’ The angle of the claim, then, goes straight away for health and safety or I made a report about something and since then, I’ve been treated in a detrimental way or I’ve been dismissed from my employment. Then you’re in the realms of the tribunal considering there was under one prospects in terms of outcomes.

So, I think that where you are . . . it’s perfectly fine and I don’t have any difficulty where there is a vexatious complaint made or where it’s deliberately done and where there are lies being told or something along those lines. If we look at the LRA code of practice, it gives us guidance to say in certain circumstances you can look at the disciplinary procedure in terms of employees like that. The rest will be that the employees’ counter-argument will be, ‘They’ve only dismissed me because of the fact they didn’t like the claim I raised.’ Then you’re into the tribunal time to work out where the right and the wrong is in the case.

In saying that, I think if you have a paper trail, if you have a record and a report and you have an outcome, it certainly helps your case in terms of saying, ‘Look, this is the reason for the dismissal. It wasn’t to do with any complaint they raised. It was this.’ So, I don’t think that we should shy away from disciplinary proceedings where they’re warranted, but I just think that we need to be careful.

Scott: There are lots of shades of grey, it’s a bit like the earlier question about sickness. How do you say that somebody doesn’t have disability or stress when they’re looking after the parents just because they told you, ‘I’m really worried about my parents, I’m going to have to go off on sick or take time off’? It’s very difficult for an employer to turn around and say, ‘I know you’re lying about whistleblowing’ unless you catch them in some kind of way.

Seamus: Yes. The evidence will need to be there to support that.