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Changes to the Northern Ireland law on “Whistle-Blowing”

From 1/10/17 reforms to the Public Interest Disclosure legislation (also known as whistle-blowing) comes into effect in Northern Ireland. Most of the reforms have already been implemented in Great Britain between the years 2013-2016 and whilst they may look technical in nature they will have an impact on how the courts will deal with claims about how workers have suffered detriment or dismissal on the grounds that they made a protected disclosure (blew the whistle) as defined under the legislation.

The law in this area is about reactive remedy for “workers” not just employees and organisations should have a fair and robust policy that specifically deals with protected disclosures as they are not the same as employment grievances.

The law in this area is technical and complicated and there have been some significant case decisions on core components within the legislation and how the courts interpret them. The reforms to the legislation will impact on organisations that have existing whistle-blowing policies and protocols and those responsible for such policies should be aware of the reforms in areas such as –

  • The “public interest test” – this is the test applied by tribunal/court and must be met by the worker/employee. It is an objective test applied by tribunal/court and NOT the employer. The notion of what the public is (in terms of size, etc) has been the subject of recent case law and in some cases personal interest and public interest will overlap. This means that the courts will take a multi-factoral and case-by-case approach to each case before them and that “public” does not necessarily mean vast swathes of the populous at large.
  • The requirement to make the protected disclosure (blow the whistle) in “good faith” will be removed and in essence this means that the predominant motivation of the “whistle-blower” may be something other than good faith. However, any compensation awarded in such cases can be reduced by up to 25% to reflect what is effectively bad faith or a predominant motivation such as malice or revenge perhaps.
  • Other reforms introduce a power to enable the Department for the Economy to make regulations requiring a “prescribed” person or body to produce an annual report on disclosures of information made to that person by workers. This person/body is found in lists which are schedules to the existing legislation and which are periodically added to. In Northern Ireland there are around 40 of these persons/bodies currently.
  • Very importantly for employers a loop-hole that had existed in the “whistle-blowing” law has now been closed and now employers will have ‘vicarious liability’ where a whistle-blower is subjected to a detriment – being treated unfairly because s/he made a disclosure - by a co-worker in the course of the co-worker’s employment with the employer, a claim can be taken against both the employer and the co-worker.
  • Of interest to health trusts in Northern Ireland will be the extension of the meaning of "worker" for protected disclosures. Student nurses and student midwives who undertake work experience as part of a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council now fall within the extended definition of worker who may make a protected disclosure. In addition the reforms grant the power to permit the Department to amend the definition of “worker” in the future if the need arises.

THE EMPLOYMENT ACT (NORTHERN IRELAND) 2016 (COMMENCEMENT NO.1) ORDER (NORTHERN IRELAND) 2017 can be found here http://www.legislation.gov.uk/nisr/2017/199/made

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