A whistleblower is a person who identifies and speaks out against poor and potentially harmful working practices.

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

In recent years there have been many high-profile whistleblowing cases making the headlines, including a number from within NHS Trusts, and here in Northern Ireland just last year, a settlement and apology to former vet for the Department of Department of Agriculture, Environment and Rural Affairs (DAERA). The settlement with Dr Tamara Bronckaers made the headlines following a finding by the Industrial Tribunal that she had been constructively dismissed.

In this article we revisit the rules governing this area of law and provide some guidance for employers on how to identify and effectively address whistleblowing complaints in the workplace.

When is a disclosure 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 – this means it must affect others, for example the wider general public or the wider workforce. This is intended to prevent against the legal protections extending to persons raising personal complaints. 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 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: 
   a. Failure to comply with a legal obligation.
   b. Endangerment to health and safety.
   c. Commission of a criminal offence.
   d. Miscarriage of justice.
   e. Damage to the environment.
   f. Concealment of anything related to those subject matters.
4. Finally, for the disclosure to be a qualifying protected disclosure, it 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 manage these complaints carefully and confidentially will promote employee confidence and engagement in internal processes and should act as a deterrent against employees going to external sources to raise concerns.

How do I identify a whistleblowing complaint?

For many employers, the challenge is with the identification of a whistleblowing complaint. 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 come within the whistleblowing legislation. This will ensure it is appropriately managed and investigated.

1. A whistleblower does not have to raise disclosures in writing, and they can often be made away from the keyboard by remarks made in meetings, work events and even in informal discussions in the staff canteen. However, in order to minimise these instances of verbal or informal disclosures it is best practice to have effective workplace procedures and promote a culture that encourages individuals to report concerns in writing in the first instance. Where information is conveyed verbally, or in an informal setting, the recipient of that information should seek to clarify the issues being raised with the individual, and if necessary, escalate the issues for investigation in accordance with company policy.
2. In order to meet the legal tests, the person making the disclosure must reasonably believe that the disclosure they are making shows or tends to show one or more of the six categories set out above. Crucially the disclosure does not have to be true or accurate to be capable of protection. It is therefore important that employers avoid falling into the trap of failing to address an issue because they consider or know it not to be true or by calling on the individual to prove that the facts alleged are true.
3. Whilst a disclosure must be made in the “public interest” in order to be a qualifying protected disclosure, it may still be possible for workers to show that complaining about a breach of their own contract meets the conditions of being in the public interest. Therefore, an allegation of bullying and harassment for example which raises allegations of a culture of bullying behaviour by a particular person(s) or in the workplace, could amount to a qualifying disclosure.
4. Following on from point 4 above, employers should be alive to the possibility of protected disclosures being included within a grievance. In Learning Trust and others v Marshall UKEAT/2020/0107/11, three grievance letters submitted by a worker about delay in dealing with a pay dispute, and allegations about a breach of the employer’s equal opportunities policy during a recruitment process were found to be qualifying disclosures in that they “conveyed information that was linked to and capable of supporting complaints of discrimination.”
5. Whistleblowers are entitled to raise concerns anonymously and have their complaints addressed seriously. Many companies will have established whistleblowing hotlines or means of allowing workers to come forward and raise complaints anonymously. However, anonymity can impact on the employer’s ability to effectively investigate, limiting the opportunity to ask follow up questions, relay feedback or confirm details. Channels for anonymous whistleblowers should seek to encourage complainants to come forward, reassure them of the protections that they are entitled to and explain how coming forward can lead to a more thorough investigation resulting in a better chance for a satisfactory outcome.
6. Depending on the nature and complexity of the matters raised, it may be necessary to pull together a broader investigative team to investigate. It is important to ensure the correct people are involved from the outset, and employers should be deterred from relying on the same procedures used to investigate a grievance. It may be necessary to set up a team to carry out the investigations which could include legal, risk and compliance, audit, regulatory or health and safety input. Depending on the issues it may be necessary to call upon external advisers to assist.

Investigating a whistleblowing complaint

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 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 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 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.

If the allegation is well-founded, employers should take the appropriate action, for example reporting the matter to an external department or regulator and taking internal disciplinary action against members of staff.

Employers should note that if the whistleblower is not satisfied with the outcome of the investigation and the action taken, they can report the matter to the relevant external authority themselves.

The importance of recognising and implementing effective whistleblowing procedures

Individuals (including employees, workers, LLP members and agency staff) 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.

Employees also have 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 as was evident from the case of Dr Bronckaers v DAERA, which saw significant criticism in the media for members of DAERA’s upper management, hefty legal costs and a settlement to Dr Bronckaers of £1.25 million, the largest known recorded settlement of a Tribunal claim in Northern Ireland.

There is no doubt that the legal framework around whistleblowing is complex. Key for employers, however, is early identification and investigation of disclosures 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.

Access to support for the complainant should be provided, and employers should take a robust zero tolerance approach to any retaliatory or bullying behaviour towards an individual who has blown the whistle. On this point, it is worth noting that detriment claims can 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.

Legal Island Training Resources for Your Staff

Whistleblowing Awareness in the Workplace | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation? It is important that your employees understand the importance of whistleblowing awareness in the workplace and the legislation that exists to protect both employees and employers when people speak up against wrongdoing in the workplace. Legal Island’s Whistleblowing Awareness in the Workplace eLearning course is tailored specifically to your jurisdiction and is designed to complement your organisation’s own policies.

Click here to view our course on whistleblowing awareness in the workplace.