A&L Goodbody outline the practical steps to reduce risk: Protected Disclosures (Whistleblowing). 

The legislation in Northern Ireland which affords 'whistleblowers' protection is the Public Interest Disclosure (Northern Ireland) Order 1998.

The legislation enables staff who report wrongdoing to complain to an Industrial Tribunal if they are dismissed or suffer any other form of detriment for doing so. Staff are protected against unfair dismissal, detriment and victimisation. The legislation encourages and protects employees to report internally.

This article covers:

• Managing a Protected Disclosure: Importance for Employers
• Individuals Who are Protected
• Reporting A Disclosure
• Qualifying Disclosure
• 'Reasonable Belief'
• Investigation
• Grievance vs Disclosure
• Whistleblowing Policy
• Employers' Potential Liability

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The legislation in Northern Ireland which affords 'whistleblowers' protection is the Public Interest Disclosure (Northern Ireland) Order 1998. The legislation enables staff who report wrongdoing to complain to an Industrial Tribunal if they are dismissed or suffer any other form of detriment for doing so. Staff are protected against unfair dismissal, detriment and victimisation. The legislation encourages and protects employees to report internally.

• Controlling risk – employers have an interest in uncovering wrongdoing or dangerous practices within the organisation so that these can be remedied.
• Avoid litigation – When managed effectively employers will avoid a potentially costly claim which can be brought by an employee who feels they suffered a detriment as a result of making the disclosure. (This is discussed in further detail below).
• Avoid negative press coverage/reputational damage - External disclosure of suspected malpractice, especially to the press, will result in negative publicity for the employer and is likely to damage staff morale. Effectively managing a disclosure internally will help to avoid such negative exposure.

INDIVIDUALS WHO ARE PROTECTED

• An individual is protected under the legislation if they are:

o A worker;
o making a 'qualifying disclosure'; and
o making a 'protected disclosure.'

• Employers should be aware that the term 'worker' is defined widely in this context.
• As well as employees it includes the self-employed, agency workers and people who aren't employed but are in training with an employer.

REPORTING A DISCLOSURE

• The disclosure may be made to the individual's employer according to procedures put in place by the employer.
• Concerns raised externally must be made to certain prescribed bodies to remain protected.

QUALIFYING DISCLOSURE

• In order to be considered a 'qualifying disclosure' the disclosure must be made in relation to a breach/malpractice as set out in the legislation.
• The types of malpractice the legislation covers are:

o criminal offences;
o failure to comply with a legal obligation;
o miscarriages of justice;
o threats to people's health and safety;
o damage to the environment; and
o the deliberate concealment of any of the above.

'REASONABLE BELIEF'

• In order for the disclosure to be 'protected' the individual making the disclosure must have reasonable belief that the information disclosed shows one or more of the 6 offences or breaches listed above.
• Employers should note that it is not necessary that the allegation is true but merely that the worker reasonably held that belief at the time of the disclosure and that they acted in good faith.

INVESTIGATION

• The first step for employers should be to meet with the individual making the disclosure in order to ascertain the facts being alleged.
• Following this it is advised that the employer undertakes an appropriate investigation to determine a suitable course of action.
• From a practical perspective knowing what policy to follow is often crucial. Employers should be careful to differentiate between a member of staff filing a grievance and making a protected disclosure.

GRIEVANCE VS DISCLOSURE

• It is imperative that employers recognise the nature of the complaint being made at an early stage. Often employers mistake a protected disclosure for a formal grievance. Always take legal advice if you are unsure.

WHISTLEBLOWING POLICY

• Employers are advised to draft and implement a clear policy and ensure that this is embedded in the wider framework of policies.
• Managers with the responsibility of implementing the policy should be fully briefed and trained with regards to the procedure to be followed.
• The policy should be publicised internally and reviewed regularly.
• When implementing the policy employers should investigate disclosures promptly and keep the whistleblower informed as to the progress where possible.

EMPLOYERS' POTENTIAL LIABILITY

• Employees and 'workers' may lodge a claim with the Industrial Tribunal that they have been subjected to a detriment.
• The amount of compensation in respect of detrimental treatment a Tribunal may award is uncapped. In the recent NI case of AB v Ulster Bank 724/13 2250/12, the Claimant employee was awarded £28,792 (this included £15,000 in compensation for injury to feelings).

Reform on the law on whistleblowing has taken place both in GB (under the Enterprise and Regulatory Reform Act 2013), and ROI (under the Public Disclosures Act 2014).

A wide-ranging public consultation on possible changes to employment law in Northern Ireland was commissioned on 16 July 2013. One of the matters under review included reform of current law on whistleblowing in NI. Publication of the final report is eagerly anticipated. It is advised that employers remain up-to date with any changes that take effect following publication of the report.