Protection for whistleblowers has been in place since 1998, under the Public Interest Disclosure (Northern Ireland) Order 1998. It provides workers with protection against detriment and dismissal as a result of making a protected disclosure.

Regulators and whistleblowing organisations such as Expolink have reported a rise in whistleblowing complaints in the last few years. More recently, a leading whistleblowing charity has reported that 36% of the Covid-19 related calls it has received since the beginning of the pandemic have been to report abuse of the government’s Job Retention Scheme.

In addition, workplace walkouts and complaints related to employer failure to adhere to social distancing rules and/or provide adequate PPE have been dominating the media.

The current health crisis has increased people’s focus on employer duties to provide a safe working environment. In the right circumstances, individuals may have recourse to the aforementioned legal protections as a result of raising Covid-related concerns.

As Northern Ireland slowly moves into a recovery phase and more businesses are preparing to re-open, it is an important time for management and HR teams to consider the importance of effective protocols for employees to report concerns. This should form part of the overall planning strategy.

A paper policy is just a starting point. Successful active implementation of a whistleblowing policy is fundamental to good corporate governance, effective risk management and a positive workplace culture. Whether your organisation has an existing whistleblowing policy or not, this may be an ideal time to review it or put one in place.

With that in mind, we have set out some of the key matters to consider.

What is a whistleblower? ⚓︎

A whistleblower is a person who identifies and speaks out against poor and potentially harmful working practices. This disclosure of information is referred to as a protected disclosure.

The legal definition of a protected disclosure is contained in the Employment Rights (Northern Ireland) Order 1996. There are a number of requirements that an individual is required to meet in order to be afforded the necessary protections under the law as a whistleblower:

1. There must be a disclosure of information – this must be more than merely providing an opinion or making an allegation without foundation. It should be factual and clearly explained. The information can be given verbally or in writing, although effective workplace procedures should encourage individuals to report concerns in writing.
   
   
2. It must be in the public interest – under reforms of whistleblowing legislation in 2017, there is now a strict legal requirement to demonstrate that the information being disclosed is within the wider public interest. This was intended to prevent against the legal protections extending to persons raising concerns about matters that were personal to them. However, case law has established that there is a relatively low bar when it comes to satisfying this aspect of the test, and matters that impact on a small group of colleagues, including the whistleblower, may be covered. Therefore, even if there is an element of personal interest to the individual disclosing the information, this will not always be a clear indicator that a matter should not be treated as a whistleblowing complaint.  
   
   
3. The individual must also be able to show that they had a reasonable belief that the disclosure of information tended to show failings in one of six specified categories. The belief can relate to failings that have already occurred, are currently ongoing or that have not yet happened where the whistleblower holds a reasonable belief that they may happen in the future. The categories cover:
   1. Failure to comply with a legal obligation.
   2. Endangerment to health and safety.
   3. Commission of a criminal offence.
   4. Miscarriage of justice.
   5. Damage to the environment.
      Concealment of anything related to those subject matters.
      
      
4. The disclosure must be made to one of the specified persons listed in the legislation. First and foremost, concerns should be raised with the individual’s employer. However, where an individual does not feel able to raise matters with the employer, concerns can be raised outside of the organisation, including to bodies to whom the failure relates. Having appropriate processes in place to carefully and confidentially manage these complaints will promote employee confidence and engagement, and should act as a deterrent against employees going to external sources to raise concerns.

Identifying a whistleblowing complaint  ⚓︎

As with all policies and procedures in your organisation, training employees is fundamental to ensuring the proper and consistent application of the rules.

It is important that management understand what whistleblowing is, how to spot a complaint that is or could potentially be of that nature, and what to do if they believe that a concern could fall under whistleblowing legislation. This will ensure it is appropriately managed and investigated.

Whistleblowing complaints will often not be marked as such, and depending on the nature or complexity of the concerns, they can be difficult to identify. They may form part of a grievance, or a complaint letter; they may be verbal or written. There is no set format in which a concern must be raised in order to fall within the whistleblowing framework.

As discussed above, matters that are purely personal to the individual concerned, with no wider element at all, should be treated and dealt with under the grievance procedure. A complaint of bullying and harassment is one such example. However, if that complaint raises concerns not just about the individual’s own experience of such treatment but of a culture of bullying behaviour in the organisation, it could arguably fall into the category of a protected disclosure.

It is entirely possible that owing to a complaint like this, an organisation may initiate both a grievance process and a separate investigation under its whistleblowing policies. It will be important in these circumstances to explain to the individual making the complaint what steps are being taken and why.

Early involvement of HR and legal teams can assist with the proper identification and categorisation of issues.

It is also important to note that legal protections for whistleblowers extends to the broader definition of worker. This includes agency workers, consultants, contractors, secondees and trainees.

The policy should therefore cover everyone who provides work for your organisation, and management should be aware both of their obligations to investigate complaints from those who are not employees, and to investigate potential misconduct or malpractice committed by all persons working there.

How should disclosures be raised? ⚓︎

Having a whistleblowing policy enables employers to tell individuals the steps they should take if they wish to raise a concern.

Importantly, reports should be encouraged in writing and a follow up meeting should be arranged with the individual to obtain full details of the concerns being raised.

Often, individuals worry about speaking out about poor working practices out of fear of repercussions. It is therefore important that in setting out the process for raising disclosures, confidentiality is addressed and assurances are given as to the measures that can be taken to protect the individual’s identity so far as possible. Example policy wording could be:

“All concerns will be treated in confidence and every effort will be made not to reveal your identity if that is your wish. If it becomes clear that we cannot properly conclude or progress our investigation without providing your identity, we will discuss this with you and seek to find a way forward.”

OR

“We hope that staff members will feel confident to openly report their concerns. However, if you wish to raise particular concerns about confidentiality, we will make every effort to ensure your identity is protected.”

The policy should encourage reporting of concerns in the first instance to a member of line management. However, owing to potential issues or concerns the individual may have with doing that (particularly if they are concerned about being identified), the policy should provide details of a number of points of contact in the organisation up to senior management.

There is no legal requirement to do this (save in certain regulated industries, such as financial services). However, you may wish to appoint a dedicated whistleblowing champion in the business who can be an initial point of contact, and provide support and pastoral care during the investigative process.

Some organisations provide details of confidential whistleblowing charities such as ‘Protect’ and ‘Public Concern at Work’, who can give independent advice to those who wish to report concerns. Employers may also set up their own internal whistleblowing helpline, which will provide for confidential and anonymous reporting if the individual prefers.

Addressing difficulties with anonymity ⚓︎

Whilst keen to stress the value the organisation places on confidentiality, a whistleblowing policy should flag the potential impact an anonymous complaint can have on an employer’s ability to investigate complaints. For example:

“Raising anonymous complaints is not encouraged, and may inhibit our ability to properly investigate the concerns raised if we are unable to obtain further details from you.”

Collecting as much detail as possible at the outset will be important in order to determine the potential scope of the investigation and persons who may need to be involved. This can also be critical to preserving the privilege of the investigation and securing a circle of confidentiality around those who will need to be included. Any persons in the organisation who are or may be proximate to the concerns being raised should not be involved in the investigation.

Who will investigate?  ⚓︎

Depending on the nature and complexity of the matters raised, it may be necessary to put together an investigative team made up of HR, in-house legal teams, risk and compliance, audit, regulatory and external advisors.

It can often be beneficial to retain a ‘need to know’ list of those who are involved in the investigation, with details of when they became involved and the reasons for it. This can prove useful in the future if faced with questions about breaches of confidentiality or alleged detrimental treatment by the individual raising the complaint.

The investigation ⚓︎

Regardless of initial views on a complaint, particularly in cases where limited information has been provided, each complaint should be taken seriously and from the point of view that it could be a protected disclosure.

It is important to note that in order to have protection under the law, a whistleblower does not need to show that there was any wrongdoing. Rather, they must show they held a reasonable belief that the alleged conduct or poor working practices had happened or could happen.

Prompt action in response to concerns should be taken, and regular updates provided to the individual. Where information continues to be fed through by the whistleblower during the course of the investigation, you may wish to agree how often you will communicate with the individual to acknowledge correspondence and provide updates. This is another useful means of preventing future allegations that the individual was ignored or that information was disregarded or mishandled, whilst preventing investigations from mushrooming.

It will also be important to clarify that some aspects of the investigation may need to remain anonymous in order to protect the confidentiality owed to others, or to avoid any prejudice to further ongoing investigations. For example, where a separate criminal or regulatory investigation has commenced.

Legal protection afforded to whistleblowers  ⚓︎

Individuals who make a protected disclosure will have protection against any detrimental treatment that is as a result of raising those concerns. This could include loss of a promotion, action to address a performance or conduct issue, an unfavourable salary review or a team move.

Important to defending such allegations will be the ability to disprove any causative link between the acts of raising a protected disclosure and the subsequent event or action that is alleged to be detrimental.

There is also protection against dismissal (including constructive dismissal) where the individual can show that the reason or principal reason for the dismissal was because of making a protected disclosure. Any dismissal by reason of having made a protected disclosure will also be automatically unfair, and there will be no qualifying service requirement linked to the dismissal claim.

Whistleblowing complaints can be both financially and reputationally damaging for employers. There are no caps applied to financial awards in the tribunals and damages are not always limited to loss of earnings. It is therefore important that organisations invest the time in ensuring the appropriate policies and procedures are in place, and that staff are sufficiently confident in those policies and procedures to raise matters internally without fear of repercussion.

Under 2017 changes to whistleblowing legislation, claims can now be pursued against companies and individuals, and employers can be held vicariously liable for the actions of staff members. Like the reasonable steps defence in a discrimination claim, employers will have a defence to complaints where they can show they have taken all reasonable steps to ensure that co-workers do not treat a whistleblower detrimentally.

Proactive steps to educate and train your workforce and maintain strict confidentiality during investigations can serve organisations well, if faced with defending a claim like this in the tribunal.

Conclusion ⚓︎

If you do not yet have a policy on whistleblowing, now may be the perfect time to put something in place.

Appoint someone to take responsibility for drafting and reviewing the policy regularly. Ensure that the whistleblowing policy (or, as some employers prefer, a ‘raising concerns’ policy) receives senior endorsement and support and is actively embedded in your organisation. Simply having a paper policy will not suffice.

Consider how and where concerns should be raised internally, and give some thought to identifying a whistleblowing champion or offering other internal services such as a dedicated helpline for reporting concerns.

Finally, take every complaint seriously and in the strictest of confidence. Ensure good records are kept of all engagement with the individual during the investigation and what actions were taken as a result of the concerns raised. If no action is taken, record that and the reasons why.

Some organisations publicise steps taken as a result of concerns raised that affect the wider workforce population – for example, communicating with staff that “you said X, so we did Y”. Steps such as these will help to promote a positive whistleblowing culture.