Whistleblowing Legislation Changes in Northern IrelandPosted in : Supplementary Articles NI on 11 January 2018 Issues covered:
Mark: Northern Ireland got a commencement order and caught up with GB. On the 1st October 2017, the law effectively in Northern Ireland changed to reflect the GB whistleblowing legislation. The first commencement order effectively brought Northern Ireland law from 2013/2016 reforms that were made in GB into line, and there were some significant reforms that caught a few people on the hop because it was the 1st of October and it was a permanent secretary who pushed the button on the legislation to commence. So a few people were blindsided by it, but it is now in legislation, and so we are now more or less in line with GB as far as whistleblowing law is concerned.
What are the key changes?
Mark: The key changes include that a worker who is making a public interest disclosure must ensure that the disclosure they're making is in the public interest. This is effectively to close a loophole in the legislation that occurred as a result of a case in 2002 called Parkins and Sodexho. This means that an individual worker is no longer able to use the whistleblowing legislation to blow the whistle about a legal obligation that relates only to their contract of employment. It has to be much wider and in the public interest.
Scott: That's a genuine belief it's in the public interest, but I think, as we'll see the first case that we're going to deal with in the case law review, it's not really a high bar what's in the public interest.
Mark: No indeed, and practitioners have been curious to see how the courts will interpret what the public interest is, and the courts, as you've quite rightly said, are more interested in the objective test of what the worker reasonably believed was in the public interest rather than have this very black and white test about what the public interest is and how many people have to be affected by that for it to be in the public interest. That's not how the courts have gone with it. The number of people affected by it is not really the core consideration of the courts.
Scott: Okay, and what other changes have come in, Mark?
Mark: Other changes include the removal of the good faith requirement. If a worker is making a public interest disclosure, they are no longer barred from the protection of the courts if they make the disclosure in bad faith. They may be motivated by revenge or malice or compensation. It doesn't matter. They'll still be able to have their case heard. However, any compensation that they win will be reduced by a percentage to reflect the bad faith which was their predominant motivation in making the disclosure.
Scott: Okay, and they were too minor for most people but major for people in the NHS. They've been brought on board and so on.
Mark: That's right.
Scott: But the other big change is in employer vicarious liability.
Mark: Absolutely. When the original legislation was passed there was a gap or, as lawyers call it, a lacuna in the law that meant that there was no provision for employers to be vicariously liable for the harassment of the whistleblower by fellow workers. That loophole has now been changed.
This has major policy ramifications for employers because, much in the same way as there is in our anti-discrimination legislation, there's now a requirement on the employer to show what reasonably practicable measures they have taken in order to protect whistleblowers from being harassed from fellow workers.
Scott: That leads into other issues, and I know that there has been case law now in GB, but if you're protecting the person who's blowing the whistle and then you have another employee who has allegedly broken the law in some way and that's why you blow you whistle, that person has a right to a fair hearing.
Mark: That's right.
Scott: And it's useful if you know who it is that's saying that you've done something wrong if you go to defend yourself, but that makes it very difficult.
Mark: It does. It does, and HR practitioners are really in the crosshairs here because, in effect, there will always be a question about which takes precedence – the grievance procedure, the discipline procedure, or the whistleblowing procedure – and there are lots of questions surrounding things like natural justice, about knowing your accuser, the ability for somebody to make an anonymous whistleblowing complaint.
So a lot of it's to do with the mechanisms in the internal organisations, and HR practitioners need to be careful because, as we'll see in some of the other cases we're about to look at, it's not within the gift of HR, for example, to categorise whether something is a whistleblowing complaint or is not. It's really within the gift of the whistleblower to determine how the subject matter that they're disclosing, how it's categorised.
Scott: And it has this genuine belief. So even if sometimes it's not really whistleblowing, that's going to cause some certain problems if you genuinely believe it's whistleblowing.
Mark: It is.
Scott: The courts will ultimately determine it.
Mark: Absolutely, and there is a degree of subjectivity on the individual and objectivity as far as the court's concerned, and it can put HR in a very nebulous position because they are not in a position to second-guess the reasonable belief of the employee or the worker. It is purely within the gift of that individual employee or worker.
HR might be tempted to categorise a whistleblowing complaint as a run-of-the-mill grievance, and in actual fact they shouldn't be doing that because, as we'll see in the Croydon NHS case, that's not with their gift. That's a test that the courts or tribunals have to employ.
Scott: Certainly, the Republic of Ireland has had similar whistleblowing legislation for quite a while. It does cause issues with when you get a complaint, when you get a grievance, do you ask the question, "Is this a whistleblowing complaint?" because it brings extra protections and extra costs, unlimited rewards and such like that you would get in Northern Ireland and five years' compensation of your annual salary in the Republic of Ireland. So it's a different beast, a different category.
Mark: It is a different beast, but from a practitioner's perspective, you would always say you need to err on the side of caution. If it walks like a whistleblowing complaint and quacks like a whistleblowing complaint, invariably treat it as a whistleblowing complaint, and if you need to verify that with the individual, so be it, and treat it at face value. Don't make assumptions that it's just a standard grievance, because that will come back to bite the practitioner.
Related article: When might an employer challenge a whistleblower?
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