A wee bit of background. 16 December 2019, the EU passed the Whistleblower Protection Directive. That started a two-year deadline clock, which member states have to transpose the directives into their national legislation.

But why are we telling you this? Brexit has happened. We're out. We're not in the EU. We don't care anymore. Unfortunately not, because we have signed up to the rather snappily titled EU-UK Trade and Cooperation Agreement. That does tie us in to certain EU standards. And if we want to trade with the EU, we've got to comply with some of these standards.

Whistleblowing in the UK is fairly well covered. The EU have commented previously about how robust our legislation is. Here in Northern Island, we've got the Public Interest Disclosure Order. That was 1998. GB is the Public Interest Disclosure Act 1999. It is very comprehensive, but there are a few things that aren't covered by this new directive.

I suppose first things first, Seamus. Are the laws on whistleblowers in Northern Ireland the same as in the rest of GB?

Seamus: As you have said, they have the Act in the England, and then we have the equivalent Order here in Northern Ireland. So broadly speaking, the legislation is very similar. Both the Act and the Order made amendments through to the Employment Northern Ireland Order of 1996 in Northern Ireland, and obviously the Act in England.

The basics of what the legislation does is it seeks to provide protection for individuals who make a qualifying disclosure, and that's known as a whistleblowing action, provided that they do that in good faith to their employer or to a third party against . . . So it protects those that take those actions against any kind of detrimental action, including dismissal, for making the disclosure.

Whenever the legislation was brought in initially back in 1998, we did see a lot of employers move to introduce internal whistleblowing policies and controls. They encouraged the use of whistleblowing, so essentially encouraging employees to blow the whistle. You'll see a lot of the larger multinational firms and a lot of the financial institutions will all have very clear guidance, and they'll be encouraging employees to raise any issues that they have.

It certainly, Christine, follows very much in this movement that we have at the minute of this open and transparent workplace. We talked in the last webinar similarly about issues arising in relation to this #MeToo movement and the Black Lives Matter movement. It's pushing its way along for this workplace to be an area where employees feel safe, where they feel safe in raising concerns that they have, and a legitimate expectation that the employer will not brush those concerns under the carpet, but they will deal with them.

Interestingly, just from my own perspective, the whistleblowing cases are not something that come across my desk every day of the week. Certainly, I come across them from time to time. I have dealt with whistleblowing cases relating to employees' concerns in and around the actions of the employer, where they've raised matters internally and then they've maybe taken it on out to a regulator.

So, I've done some nursing home cases where disclosures have been made to our GIA and then the employee has felt that there have been deliberate actions, retaliations, by the employer upon them because of the fact that they have raised these concerns.

I've done some cases relating to financial institutions. That's always the big one to watch out for. And the FCA obviously have their own guidance, which goes above and beyond what's contained within the Order of the Act when it comes to PID, the expectations that they expect the financial institutions to take. And that's because there's obviously a larger risk of there being irregularities and people doing things they shouldn't be doing in those sorts of arenas, if we leave it like that. So I do come across it from time to time.

Employment Judge Murray in the tribunal has a specific interest in PID claims, and certainly she case manages . . . From my understanding and my knowledge, she case manages all of the cases that relate to the Public Interest Disclosure matters. It is a niche area. It is a complex area. And it's one that is certainly developing through this directive.

Christine: How does this new directive differ? What types of changes would the EU be looking for?

Seamus: The directive definitely moves the procedure for whistleblowing further and brings it right up to date. The issue that arises within the EU when it comes to whistleblowing is that some of the states are very good at it. Some of the states have policies and procedures and the protections are very strong for employees or workers that bring about whistleblowing . . . where they blow the whistle, I should say. Other states are very poor at it. What the EU is trying to do with this directive is to harmonise the legislative position across all of the member states. Just as a result of that inconsistent approach, they're looking to have a consistent process.

You're absolutely right. Everyone will be saying, "As a result of Brexit, we're not part of the EU any longer". But the reality is that the UK does an awful lot of business with its EU member state counterparts. The UK-EU Trade and Cooperation Agreement does require the UK to keep up-to-date in respect of EU levels of employment protection. That was part of the framework that was put together in respect of the withdrawal.

In Northern Ireland, we're probably in a very specific position because we will have our local businesses that will trade and have employees and offices based in the Republic of Ireland. It would then cause a difficulty for employers here in Northern Ireland to have whistleblowing policies, public interest disclosure policies and procedures that would have one set of rules for their Northern Irish employees and then another set for their ROI employees.

Christine: Yeah, separate

Seamus: Yeah, exactly. I suspect there will have to be some sort of conformity. We were having a quick chat just before the webinar started, just in relation to that the UK is holding their firm line in relation to EU regulations and requirements and there being that sudden change at the end. We know that we're coming up . . . I think 17 December is the transposing date. There's no doubt there has been a delay for all member states as a result of COVID. Parliamentary business has been different. But the likes of Germany, I know they have their draft bill in place.

But not to digress. I suppose just want to get back to the situation. There's no doubt that the directive increases the obligation on employers when it comes to dealing with whistleblowers. I think the first point is it widens the scope of individuals who are afforded protection. Whenever the directive is brought into place, it includes self-employed contractors, volunteers, and non-executive directors. So it does go further in that sense.

Really, what it tries to do is prohibit any form of retaliation and introduces anti-retaliation measures. That includes fines and steps that can be taken against employers. Another one of those I'll get to later on. But the situation is not one that requires everybody to change their position by the end of the year if legislation is brought in. It will be a graduated approach. Anybody with more than 250 employees has to adhere straight away. If you've between 50 and 249 employees, it's extended out until implementation to December 2023.

But the main key areas and some of the interesting aspects of it are that it introduces standards for how regulators maintain confidentiality, how they provide feedback on follow-up and discussions, and particularly in relation to how they go about investigating those whistleblowing circumstances that are in place.

Christine: I think that that is a really key thing to bear in mind. I think where a lot of employers fall down and where whistleblowing cases are almost created is from the employers' reaction at the start. Someone blows the whistle, everybody panics. You get legal advice, you get more legal advice, you have meetings, you discuss. I think employers immediately recognise it's serious, but they panic and almost don't do anything.

I've done a few whistleblowing cases in my time, and in my experience, whistleblowers are often a very particular type of person. They're also very aware. It's common knowledge whistleblowers are treated poorly and bad things do happen to them in the workplace. There's almost that expectation. Then a delay by the employer builds that expectation. That then becomes part of the whistle blow itself, and the case is almost created and more serious then. So I think having a procedure to follow is a real step forward.

Like your flexible working requests, right? We've got this email. What do we do with it? What time scale do we have to work for? I think that will be really positive, and would hopefully reduce the number of cases that end up in tribunals.

Seamus: Yeah, definitely. From experience as well, and I'm sure you've come across it as well, there is an element that happens when somebody raises a concern or complaint about internal matters to their employer, or if they step outside and go to a third party, like a regulator or the police or anything like that. There's an element of shock that takes place with the hierarchy in the company. The defences do come up. I see that. The defences and the armour come up. The armour comes out and the company set about almost fighting any allegations that are made.

What this directive is, and the purpose of the PID legislation as well, is for that not to happen. It's about creating that environment for employees to feel that they can safely raise concerns that are taking place.

The idea is that there would be a strict timeframe put in place from whenever you lodge your complaint, that it is dealt with, that there's feedback provided. The feedback is to be provided within a period of three months. It'll be similar to if you look at the guidance in relation to outcomes for disciplinary meetings and things like that, and for grievances. It will depend on the nature and the specific circumstances of a complaint and how long it'll take to investigate it.

But specifically, the directive talks about the appointment of a whistleblowing champion in the office place. It talks about making sure that there are internal, but impartial and separate, processes and individuals that will investigate and give consideration to any complaints that are made.

And then it's about the feedback given to the employee. The employee, or the worker, has to feel that their complaint has been taken seriously, that there has been a proper and full investigation, and what the workings and ramifications of that are as well. So it's sort of joining everything up to make sure that there is a clear process.

It does also protect whistleblowers from potential liability. It talks about specifically in relation to breaches of confidence, defamation, data protection matters that arise. As I said, it does introduce penalties for employers that hinder or attempt to hinder reporting or a failure or lack to investigate.

Really interesting point, as well, is that it does provide specifically for employees that feel that they have no alternative if there has been detriment happening, that they are given legal support and are provided with legal aid in respect to any of their claims.

Probably one of the most interesting aspects for me is that the directive specifically talks about a role, and this would normally be an HR role, where an investigation takes place to make sure there hasn't been any detriment arising as a result of somebody raising a complaint or blowing the whistle.

The concerns would be in and around those specific matters relating to "Has there been a failure to promote, a failure to provide pay rises? Have you been overlooked for job roles?" There is a sort of audit that is conducted for those people that have blown the whistle to ensure that there hasn't been a detriment to them.

That's really important and interesting, I think, from what would arise from the directive, in that it's not just about dealing with it, having it dealt with, and closing the door on it. There has to be this further consideration given to it after the event also. Really interesting stuff.

Now, whether or not we'll see all of that introduced and whether or not it'll come our way is another matter. I think we have to wait to see. But that's what we're looking at.

Christine: From my point of view, the legal aid is a really good point. I spent some time at the Law Centre. We did get a lot of calls from whistleblowers. Their hands are tied effectively by the legal system. You know yourself that whistleblowing cases, as lawyers, take over your life. There is more paperwork than you've ever seen in your life. The files are huge. You can't get in your office door. They are huge, unwieldy cases and they require a lot of time and a lot of legal expertise. So to be just left flapping on your own is absolutely crazy.

When you consider that a lot of whistleblowers come from the public sector, healthcare, finances, it's all really important stuff for everybody. So I think, from my point of view, the legal aid aspect is a good one.