Introduction

We often get questions to Legal-Island about Protected Disclosure also known as whistleblowing dismissals in the workplace. The cost of a whistleblowing case to an employer in terms of cost and publicity can be huge. The impact on employees is also massive. The Republic of Ireland introduced the "strongest whistleblower legislation in Europe" in the summer and changes to GB legislation mean that there is now a sizeable difference between whistleblowing laws in Northern Ireland and the rest of the UK.

For a whistleblower to succeed with a claim, did the person who subjected the whistleblower to a detriment have to have knowledge of the protected act?
Whistleblowing laws in Northern Ireland currently differ with that in GB, where the Public Interest Disclosure Act 1998 was amended in June 2013 and vicarious liability was one of those areas.
At this time in NI (subject to the contents of a pending Employment Bill) we still look to the Employment Rights (NI) Order 1996 and the case law for answers regarding detriment cases. For example, in Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13 the employee was able to establish both that he had made a protected disclosure and that he had been subjected to a detriment. However, the EAT remitted his claim because the tribunal had made no finding that the relevant actors knew of the protected disclosure and the tribunal's reasons failed to demonstrate how it had concluded that the protected disclosure "materially influenced" their actions.The EAT did not go so far as to say that it was necessary for a decision maker to have personal knowledge of the protected disclosure. It held that, hypothetically, there may be cases where there is an organisational culture or chain of command such that the final actor might not have personal knowledge of the protected disclosure but where it nevertheless still materially influenced his or her treatment of the whistleblower. In such cases, however, the tribunal must explain how it has arrived at the conclusion that this is what had happened.

For a whistleblower to succeed with a claim, does the whistleblower have to act in good faith?
Once again there are different answers for GB and NI as the statutory provisions are currently different. In GB disclosures made on or after 25 June 2013, there is no requirement that such disclosures be made in good faith to be protected. However, in NI a disclosure will be protected provided that the whistleblower was acting in good faith, as per the Employment Rights (NI) Order 1996. For example, an employee who genuinely believed that their employer had falsified its accounts or failed to report matters it was supposed to report to a regulator could raise these matters with their employer (without an ulterior motive than to correct the wrong-doing) and, in so doing, would be making a protected disclosure.
In GB, amending legislation created the following position, as explained in the explanatory notes to the Enterprise and Regulatory Reform Act 2013.“Good faith” is not defined in the ERA 1996, but the courts have held that where the predominant motive of the individual making the disclosure was not directed at remedying one of the wrongs listed in section 43B of the ERA 1996, but was instead for some ulterior purpose, the disclosure is unlikely to have been made in good faith. (See Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687).

For a whistleblowing claim to succeed, does the whistleblower first have to take up the issue with the alleged wrong-doer?
Technically, no they do not but as a “general rule of thumb” the further away from the employer the whistleblower goes to make the disclosure the higher the legal hurdles become that might afford the whistleblower protection against detriment and dismissal.

My employer has not paid me holiday pay and is in breach of contract over a bonus payment. Are these complaints covered by NI protected disclosure legislation?
Originally the Public Interest Disclosure legislation was envisaged to cover public, not personal, interest. However, as a result of the case of Parkins v Sodexho (2002) the EAT held that the definition of a qualifying disclosure (which included "breach of any legal obligation") was broad enough to cover a breach of the whistleblower's own contract of employment, despite the fact that this did not, on its face, appear to have a "public interest" aspect. Once again the position in GB is different in that in GB cases of “personal interest” cannot now be taken under the amended legislation, thereby closing what was called the “Parkins Loop-hole” in GB. Until the law changes in NI, complaints based on individual wrongs are still valid.

What compensation might a whistleblower get if they;
a) Suffer a detriment short of dismissal; or
b) Are dismissed as a result of making a protected disclosure?
Interestingly there is no upper limit on the amount of compensation that can be awarded in unfair dismissal or detriment cases under the whistle-blowing legislation. However, the basis on which compensation is assessed in each type of case is different.

The US Securities and Exchange Commission (SEC) revealed in September 2014 that it awarded a record $30m (£18m) payout to an anonymous whistleblower who lives outside the US. More from the BBC:
http://www.bbc.co.uk/news/business-29316077

In June 2012, the Independent reported that the former Olympus boss fired after blowing the whistle on an accounting scandal was to receive a £10 million payout:
http://www.independent.co.uk/news/business/news/10m-payout-for-olympus-boss-sacked-for-whistleblowing-7831585.html

In 2008 the Telegraph reported that a police whistle-blower who was sacked after accusing colleagues of keeping a piece of human skull as a souvenir won a £400,000 award:
http://www.telegraph.co.uk/news/uknews/3453483/Sacked-police-whistle-blower-wins-400000-payout-in-skull-incident.html 

If a whistleblower makes an allegation that turns out to be false, are they still protected under the law?
The Court of Appeal in Babula v Waltham Forest College (2007) EWCA Civ 174 held that there could be a qualifying disclosure under the whistleblowing legislation where the employee holds a reasonable but mistaken belief that the facts disclosed are capable in law of amounting to one of the types of malpractice listed in the legislation (such as a breach of a legal obligation).

The Court of Appeal held that, provided the tribunal considers that the worker's (subjective) belief that the relevant malpractice has occurred is (objectively) reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts which the employee believes to be true (and which may, in fact, be true or not true) do not amount in law to the relevant malpractice. This case removes a major barrier to the protection of whistleblowers in the workplace.
http://www.bailii.org/ew/cases/EWCA/Civ/2007/174.html

For more information on whistleblowing laws see below:

The Public Interest Disclosure (Northern Ireland) Order 1998:
http://www.legislation.gov.uk/nisi/1998/1763/contents

Public Interest Disclosure Guidance from DELNI (April 2014):
http://www.delni.gov.uk/public-interest-disclosure-guidance.htm

Public Concern at Work:
http://www.pcaw.org.uk/