​Changes to the law around Whistleblowing

29 September 2017

Author: Leona Rankin
Practice Area: Employment Law

L_rankin

Certain provisions of the Employment Act (Northern Ireland) 2016 are due to come into force on 1 October 2017 which will see changes to our current whistleblowing provisions under the Employment Rights (Northern Ireland) Order 1996.

As always, this area of law is of particular interest given that whistleblowing awards are not subject to a cap in compensation and, although claims are relatively rare, when successful, they tend to result in the highest awards as the stigma of whistleblowing often leads to the loss of careers.

What can we expect to change?

  • A new “public interest” test
  • Disclosures no longer need to be made in “good faith”.
  • Prescribed persons” to produce an annual report
  • Employers to be vicariously liable for detriment caused
  • Extending the definition of a “worker”

The introduction of a public interest test will mean that, in the future, in order to be afforded protection, a disclosure must be made in the public interest and affect others also. Therefore, disclosures characterised as personally affecting the individual, rather than relating to the public, will not be covered.

The “good faith” hurdle previously faced by a whistleblower will be removed as protected disclosures no longer have to be made in good faith. Instead, the Industrial Tribunal will be afforded the discretion to reduce any award of compensation by up to 25% where it has found that a protected disclosure has not been made in good faith.

The Department for the Economy now have the power to make regulations requiring “prescribed persons” to produce an annual report of the disclosures of information made to them by whistleblowers but without needing to identify the workers concerned or their employers. The purpose of this is to improve consistency and best practice among prescribed persons.

Workers have the right not to be subjected to a detriment on the ground that they have made a protected disclosure. In the future, employers will be vicariously liable where a co-worker of a whistleblower subjects the whistleblower to a detriment because he or she made a protected disclosure. Similar to acts of discrimination, the employer will have a defence if it took all reasonable steps to prevent the detrimental treatment.

The meaning of “worker” will be extended for the purposes of who can make a protected disclosure. The changes will allow a student nurse or student midwife who makes a protected disclosure concerning his or her work experience to bring a claim. The provision also permits the Department to change the definition of “worker” in the future, should the need arise.

These changes were introduced in Great Britain in 2013 and there have already been a number of important decisions from the English Court of Appeal (Beatt v Croydon Health Services NHS Trust [ 2017] EWCA Civ 401 and Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979) which have set the direction of travel in terms of how the courts here in Northern Ireland are likely to interpret the amendments to our legislation.

What action can you take?

  • The changes will take effect from 1 October 2017, so we would advise that you review and update your whistleblowing policy to ensure that it reflects the legislative changes.
  • If you don’t already have a whistleblowing policy in place, consider introducing this.

If you require any further advice or information concerning these changes, please contact a member of the Employment Team at Carson McDowell.

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