What Constitutes Whistleblowing and How Should Employers Handle it?

‘Whistleblowing’ is when an employee or worker discloses that something unethical or illegal is happening, doing so in the public interest. Under the Employment Rights (Northern Ireland) Order 1996, ‘blowing the whistle’ in this manner is more formally known as ‘making a disclosure in the public interest’. The legislation provides protection for whistleblowers from losing their job and/or being treated detrimentally as a result of making a qualifying disclosure.

Who is Protected Under Whistleblowing Legislation?

A whistleblower is protected from detrimental treatment/dismissal if they are:

• A worker or employee.
• Revealing information of the right type by making what is known as a ‘qualifying disclosure’. Section 67B (1) of the Employment Rights (Northern Ireland) Order 1996 provides that a ‘qualifying disclosure’ is one which discloses the following types of information: (a) that a criminal offence has been committed, is being committed or is likely to be committed; (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he/she is subject; (c) that a miscarriage of justice has occurred, is occurring or is likely to occur; (d) that the health or safety of any individual has been, is being or is likely to be endangered; (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.
• Revealing the information to the right person and in the right way making it a ‘protected disclosure’. The legislation provides that the disclosure must be made to: the worker’s employer, a prescribed person within the organisation, or a “responsible” third party. It is noteworthy that wider disclosures, such as to the police or to the media, will only qualify in very limited cases.
• Revealing it in the public interest.

Who Classifies as a ‘Worker’ for Whistleblowing Purposes?

‘Worker’ has a special and wide meaning for these protections. As well as employees it includes agency workers and people who aren’t employed but are in training with employers.

Under Northern Ireland employment legislation, it is automatically unfair to dismiss someone for making a protected disclosure.

It is also important to be aware that ‘public interest’ does not necessarily mean large numbers of people need to be impacted or interested. The Tribunal will take a case-by-case approach.

How Should Employers Handle Whistleblowers to Avoid Issues or Claims?

There are six key steps that employers should take in order to ensure that they handle whistleblowing complaints effectively and within the law, these include:

• Having a clear and fair policy on whistleblowing (it is important to note that whistleblowing is not the same as a grievance);
• Providing a forum for workers to feel comfortable discussing issues;
• Ensuring that the management team are properly trained to deal with any relevant disclosures;
• Making sure that there is a thorough investigation of any claims made by a whistleblower;
• Ensuring all cases are handled confidentially; and
• Protecting the worker from being penalised or punished for making a disclosure.

Recent Changes to Whistleblowing Legislation

Important changes to the Northern Ireland law on whistleblowing were made in October 2017 and those who have responsibility for an organisation’s whistleblowing policy should be aware of them.  For example, it is now the Employment Tribunal (and not the employer) who decides what is, or is not, in the public interest.

Where a whistleblower is treated unfairly afterwards by a colleague, the employer now has ‘vicarious liability’, meaning they are jointly responsible and a claim can be taken against both the employer and the colleague.

If you would like to seek further information about any of the issues raised in this article, please contact our Employment team at Cleaver Fulton Rankin.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.