Whistle-blowing – a change of tune
IT'S almost a year since Northern Ireland fell into line with Great Britain by way of the introduction of changes to public interest disclosure legislation.
But with recent shocking revelations around Dunmurry Manor care home, the details of which were published in a damning report by the Commissioner for Older People following concerns raised by residents' families and whistle-blowers, it is useful to remind employers of the changes in legislation and how it might impact them.
Public interest disclosures, more commonly known as ‘whistle-blowing', are disclosures made by a worker in respect of suspected wrongdoing. The disclosure must be a qualifying disclosure in that the worker must reasonably believe that the disclosure being made is in the public interest and that it is a relevant failure such as a criminal offence, a miscarriage of justice or a danger to the health or safety of any individual, which is currently happening, took place in the past or is likely to happen in the future.
Specifically, the changes introduced last October include:
1 The “Public Interest Test” - It's important that employers be aware that this is an objective test to be applied by a tribunal or court and not by the employer. The definition of ‘public' has not been defined by the legislation and as such the Tribunal is required to come to a decision on a case-by-case basis with personal and public interests overlapping in certain cases.
2 The removal of the “good faith” requirement - Prior to the changes in October, under the Public Interest Disclosure (NI) Order 1998 it was a requirement that a disclosure be made in good faith and proof that such disclosure was not made in good faith was grounds for the protection to be removed. This requirement no longer exists and by consequence means that the worker may be motivated by something other than good faith. To combat any such malicious motivations, a Tribunal can reduce any compensation awarded by up to 25 per cent to reflect bad faith motivations to disclose.
3 Introduction of vicarious liability - Where a whistle-blower suffers a detriment as a result of blowing the whistle, the whistle-blower can make a claim against both the employer and the co-worker who treated the whistle-blower unfairly.
4 Extension of the meaning of “worker” - Of particular interest to the health trusts, the amendments extended the definition of “worker” to include student nurses and student midwives undertaking work experience as part of their training.
5 Power to require an annual report - The Department of the Economy was granted the power to make regulations requiring a prescribed person or body to produce an annual report on disclosure of information received from workers.
The amendments to the whistle-blowing legislation have therefore required courts and tribunals to adopt a different approach when dealing with claims brought by workers who have suffered detriment or dismissal as a result of having made a protected disclosure. The widening of the law in this area has shifted the focus towards the allegation made and away from the intentions and motives of the whistle-blower.
From the point of view of a practitioner, the whistle-blowing amendments have brought about an increase in the number of whistle-blowing claims taken by employees in the Tribunal. Employers should note that there is no requirement for these employees to have the qualifying 52 weeks of employment to be able to lodge such a claim.
In order protect themselves employers should ensure that they have a comprehensive and up-to-date whistle-blowing policy in place. This should set out the criteria for making a disclosure and the procedure for dealing with a protected disclosure should a disclosure be made by a worker. Additionally all employees should have training on protected disclosures, how such disclosures are to be dealt with and how the worker making the disclosure should be treated.
:: Seamus McGranaghan is director (commercial) at O'Reilly Stewart Solicitors (firstname.lastname@example.org or 02890321000).