The Law of Whistleblowing in Northern Ireland

Northern Ireland’s law on protecting employees who blow the whistle on malpractices at their place of work does not go far enough to ensure that employees can do so openly and with impunity.

Discuss.

 

Whistleblowers are in the public eye like never before, with some, such as Julian Assange, even achieving celebrity stature. The term ‘whistleblowing’ is often interpreted to cover disclosures made by those who suspect wrongdoing in their workplace. This essay will argue that the law in Northern Ireland does not offer informers sufficient protection, and as a result, employees are unable to blow the whistle openly and with impunity. This essay will first briefly discuss the ethical concept of whistleblowing and assess its value. It will then set out the current law on whistleblowing in NI under the Public Interest Disclosure (Northern Ireland) Order 1998, before critically analysing the current legislative protection it offers. In doing so, several problems with the current law in NI will be highlighted and it will be assessed whether the reforms implemented under the Enterprise and Regulatory Reform Act 2013 would have any benefit if introduced in NI. Finally, a number of reforms will be suggested in order to maximise protection for those who make disclosures.

 

Part One: The phenomenon of whistleblowing

 

Whistleblowing is essentially a modern name for an ancient practice.[1] In recent years it has infiltrated our everyday language with daily news of high-profile cases both internationally and on a local level. As an ethical concept, whistleblowing is puzzling as it involves for some, great risk. Many whistleblowers face persecution and blacklisting from current and future employers over their alleged disloyalty. Commentators are divided on the moral value of whistleblowing, with some seeing whistleblowers as heroes who deserve high praise and others viewing them as troublesome individuals who threaten the stability of a workplace. The benefits of whistleblowing are obvious, in that typically the information released to the public involves damaging misconduct which needs resolved. The Committee on Standards in Public Life submits that whistleblowing plays an important role, “both as an instrument in support of good governance and a manifestation of a more open culture.”[2] However others, such as former Chair of GM, James Roche, opine that whistleblowing is industrial espionage and simply another “tactic for spreading disunity and creating conflict.”[3] In this author’s opinion, whistleblowing is a highly valuable practice, which, given the risks involved to the individual disclosing the information, is commendable and thus deserves more protection than is currently available.

 

Part Two: How does the law protect whistleblowers in NI?

 

Before the introduction of legislation into this field, whistleblowers had limited protection in common law with no right of disclosure being awarded by the Courts. However, protection was initiated in the case Initial Services v Putterill which permitted disclosures where there is “any misconduct of such a nature that it ought in the public interest to be disclosed to others.”[4] The need for statutory protection became apparent in the wake of the Zebrugge ferry disaster in 1987 and the subsequent Sheen Inquiry’s findings that employee’s concerns had been ignored prior to the accident.

 

The current law governing those who make protected disclosures in NI is The Public Disclosure (Northern Ireland) Order 1998 [5], which amended The Employment Rights (Northern Ireland) Order 1996 [6]. It does so by implementing Articles 67A-J of the ER(NI)O into Article 3 of the PD(NI)O which offers protection to those who ‘make a disclosure in the public interest’ and suffer victimisation or unfair dismissal as a result of their actions. In order to have protection an individual must prove that it is a ‘qualifying disclosure’, namely they must have a reasonable belief that workplace malpractice has occurred or is likely to. There are several different forms of malpractice covered including, criminal offences, failure to comply with a legal obligation, miscarriages of justice, threats to health and safety, and environmental damage.[7]

 

A ‘qualifying disclosure’ is protected where it is made to the individuals employer or to another whom the worker reasonably believes to be solely or mainly responsible for the relevant failure and it must be in ‘good faith’.[8] Disclosures are also protected if made to a ‘prescribed person’, defined in the Public Interest Disclosure (Prescribed Persons) Order (Northern Ireland) 1999.[9] Again, such disclosures must be in good faith, but must also be on the belief that the information, and any allegations it contains, are substantially true and he reasonably believes that he is making the disclosure to the correct prescribed person.

 

If the disclosure is not made to an employer or a prescribed person then stricter conditions must be met. It must be in good faith, not for personal gain and with the reasonable belief that the disclosure is substantially true.[10] Moreover, the worker must also satisfy one or more of the following: a reasonable belief that if they made a disclosure to their employer or a prescribed person they would be subjected to detriment or, if there was no relevant prescribed person available and the worker believed their employer would conceal or destroy information contained in the disclosure or, if the worker had previously made the same disclosure to their employer or the relevant prescribed person.[11] If one of these conditions are satisfied, an industrial tribunal will decide if a worker has acted reasonably, with particular attention paid to the seriousness of the relevant failure, whether the wrongdoing is continuing or is likely to occur again, the identity of the person to whom the disclosure was made, whether the worker complied with any internal procedures approved by the employer if a disclosure was made previously to the employer, what action has or might reasonably be expected to have been taken if a disclosure was made previously to the employer or a prescribed person and whether the disclosure breaches the employer’s duty of confidentiality.[12]

 

There are certain circumstances where a disclosure concerns exceptionally serious failures. Where this happens the typical pathway of requirements does not need to be satisfied.[13] The disclosure must still be made in good faith, not for personal gain, as a result of a reasonable belief in allegations or information being substantially true and the employee acted reasonably taking into account the circumstances. Where a qualifying disclosure is made about an exceptionally serious failure in a workplace it must be a fact not a personal opinion.

 

Part Three: Why does the law in Northern Ireland ‘not go far enough?’

 

Whilst this protection may seem fairly comprehensive, gaps in the law remain and it is submitted that there are too many conditions for employees to satisfy, leaving them vulnerable. This needs to change. Lord Touhig supports this argument, stating the current law is “dangerous for whistleblowers because people think that they have stronger protection under it than they actually do.”[14] The current methods of disclosure are overly complex which has lead to both the Courts and Tribunal Services struggling to properly interpret the legislation.[15] It will be argued that there are eight main areas where the law does not go far enough to protect whistleblowers in NI and thus recommendations for reform will be made.

 

The first concern within the current NI legislation is the lack of adequate protection for ‘workers’. Protection that is available to whistleblowers who are unfairly dismissed is only provided to ‘employees’, not ‘workers’.[16] In contrast, ‘workers’[17] can only complain that they have been subject to detrimental treatment.[18] Lewis argues that extending this protection for unfair dismissal is simply “a matter of principle”.[19] A further issue with the current protection offered to ‘employees’ is that those working in the public sector receive less support under the current NI legislation than those employed in the private sector. This distinction is unfair and particularly concerning in our regional context, given that a large percentage of the population are currently employed in the public sector. Lewis contests that since malpractice occurs in both sectors there is no need for such a distinction.[20] It is thus argued that the law should be reformed to protect workers from unfair dismissal and protect those in the public sector who are currently excluded from full protection. Yet, this argument in favour of extending full protection to the public sector is potentially problematic when it concerns those employed in the intelligence and security services. Under the Official Secrets Act 1989 they are forbidden from making disclosures given their sensitive nature. However, Hobbes contends that this blanket exclusion is flawed, asserting that they should be able to access the same protection available to most employees under the PID(NI)O. This is controversial, yet arguably those working in this sector are the most in need of protection given the obvious ‘public interest’ in their work as seen in the recent US disclosures from Edward Snowden. However, given the incredibly sensitive nature of such disclosures, and the current Conservative Government, it is unlikely that this would be a realistic reform.

 

The second concern with the current Northern Irish law on whistleblowing is the need for the claim to be in ‘good faith’. This requirement weakens protection for employees. Lewis argues that the concept of ‘good faith’ is an issue of fact and “cannot be equated with honesty.”[21] This author argues that he is correct and the concerns over the importance of ‘good faith’ are unsubstantiated, provided the disclosure is made in the ‘public interest’, which the legislation requires it to be. The focus should be on the message itself, not the messenger. Those consulted on potential reforms to the PD(NI)O have generally supported such a change.[22] However, understandably some business interest groups did not agree, insisting ‘good faith’ was essential.[23]

 

With regard to the motivations behind a disclosure, it must be accepted there are often a combination of factors at play, which may include other motives besides those that are purely altruistic. The Court of Appeal acknowledged this in Street v Derbyshire Unemployed Workers Centre, arguing “a failure or refusal by an employer to remedy a perceived failure of duty and/or injustice to a worker is often likely to engender in him an understandable resentment or antagonism that may grow if the matter is not remedied quickly.”[24] In the Enterprise and Regulatory Reform Act 2013, Parliament have attempted to balance these concerns by removing the ‘good faith’ requirement, instead giving Tribunals the discretion to detract 25% from compensation in unfair dismissal cases if ‘bad faith’ or ‘malice’ has been determined.[25] It is argued that this is a positive approach and would offer Northern Irish employees more chance to disclose without impunity, whilst at the same time discouraging potentially trivial or malicious claims against former employers.

 

A third concern with the NI law is the existence of a legal loophole established in Parkins v Sodexho, which stretched the definitions of ‘reasonable belief’ beyond what the legislation originally intended.[26] The EAT held that ‘reasonable belief’ was rather broad and was wide enough to cover a breach of an individual’s contract of employment, despite the evident lack of ‘public interest’ in the disclosure. Scott and Fulton submit that this interpretation has been controversial.[27] Parliament seems to have agreed, introducing a clause into the ERRA which requires a ‘qualifying disclosure’ to be made with the employee’s reasonable belief to be in the ‘public interest’.[28] This change has sought to narrow whistleblowing claims and thus consequently, reduce the level of openness offered to employees, so it may be thought that such a change would not be welcome in Northern Ireland.

 

However, it is submitted that ‘public interest’ is an important filter for whistleblowing claims. As argued earlier, whistleblowers often face many risks in exposing wrongdoing, but a company can also face detriment, mainly to its reputation and business. Thus it is important that those disclosures made to the public, are legitimately in their interest. The current situation in NI has allowed this ‘legal loophole’ to continue. It is argued that in order to better help potential whistleblowers in NI, this loophole should be closed and instead there should be a ‘public interest’ filter in legislation. However, it is argued that there needs to be more certainty as to what ‘public interest’ includes, as the current situation in GB whereby it has been left to the Courts to interpret it, is unsatisfactory. A certain definition of public interest would allow employees to blow the whistle with impunity.

 

Fourthly, there have been arguments advanced in support of amending the system by which the ‘prescribed person’ list can be updated by the Secretary of State. This would remove the need for frequent statutory reform. Whistleblowing charity, Public Concern at Work (PCAW) found great support for this change when gathering evidence for their Whistleblowing Consultation. This reform would be sensible because it allows for constant updates, ensuring the list is kept contemporary.[29] Furthermore, in order to maximise employee protection in NI, reform is needed to include trade union representatives on the list of ‘prescribed persons’ and also to stretch Art 67D to include trade union representatives with legal advisors. Lord McCarthy supports this provision stating that the provision should be redrafted to include “obtaining advice from a recognised trade union”.[30]

 

Fifthly, it is submitted that the lack of protection for whistleblowers who are victimised by their colleagues, may be preventing those in NI from feeling able to blow the whistle with impunity. It is submitted that the PID(NI)O should be amended to allow for vicarious liability claims to force employers to do more to protect whistleblowers whilst also compelling them to introduce company policy which offers support to those who identify wrongdoing within the organisation. The Department of Employment and Learning recently engaged in public consultation to see if NI should follow the mainland in making this amendment, with most respondents writing in support for introducing vicarious liability.[31] However, not everyone supported this reform, with the NI Federation of Small Businesses arguing that such an amendment was unnecessary given that employers are already liable in cases of harassment and bullying.[32] This is a fair critique, however it is argued that, the unique nature of whistleblowing combined with the contentious circumstances that those involved in the practice often find themselves in, support the extension of vicarious liability in order to ensure maximum protection.

 

A sixth concern clogging up protection for Northern Irish whistleblowers is the lack of effective regulation. A potential solution to this could be to petition the Government to make it compulsory for industry regulators to have mandatory whistleblowing procedures. Currently, there is an agreement about the need to support whistleblowers yet there is no mandatory protection endorsed in current NI legislation. Most industries have their own regulatory bodies including the financial services, media and health sector and some such as, the Financial Conduct Authority have noted improvements, with a rise of 64% of whistleblowing claims this year.[33] However, it is clear that certain industry bodies are still failing to adequately regulate such claims, thus, failing the whistleblowers who bravely step out to stop wrongdoing. This can be supported by an example from 2011 where the English Health and Social Care Regulator, the Care Quality Commission, confirmed that they had ignored disclosures by a staff nurse claiming that staff were mistreating patients with learning disabilities at Winterbourne View Hospital.[34] It is hoped that the introduction of a statutory regulatory body would ensure that the industry watchdogs would be subject to further scrutiny and this would consequently improve protection for employees who discover wrongdoing or malpractice.[35]

 

It is argued that the current categories of disclosures which qualify for protection are not broad enough and thus fail to capture the different forms of wrongdoing currently existing in the modern workplace. The Institute of Employment Rights supports this argument and advocates for the introduction of new categories such as ‘financial irregularity’ and ‘abuse and misuse of power’.[36] It is submitted that both of these categories are incredibly topical and furthermore, greatly needed, as can be supported by Tesco’s recent £263m accounting error. This was raised by an employee who, despite blowing the whistle over this serious irregularity, was allegedly ignored for months.[37]

 

The eighth and final area in which Northern Ireland’s whistleblowers need more protection to disclose openly and with impunity is regarding the existence of gagging clauses, known in the public sector as compromise agreements. Article 67J(1) ER(NI)O finds these agreements void if they purport to stop a worker from making a protected disclosure. However, Public Concern At Work submit the current protection is not clear enough[38] as echoed by the recent Public Accounts Committee Report which stated, “it is clear that confidentiality clauses may have been used in compromise agreements to cover up failure and this is simply outrageous.”[39] Therefore, it is submitted that Article 67J(1) should be redrafted to ensure it is clear that attempts to silence a whistleblower are illegal.

 

In conclusion, it is argued that the current law in Northern Ireland is not substantial enough to ensure that whistleblowers are free to disclose openly and with impunity. There are a number of reforms to be considered in order to extend this protection as discussed above. Some of these have already been introduced in Great Britain through the recent Enterprise and Regulatory Reform Act 2013 which extended protection by removing the ‘good faith’ requirement and allowing employees to claim for vicarious liability claims. Further reforms raised are the need to extend the definition of ‘worker’ and to include protection for those in the public sector, the widening of the list of ‘qualifying disclosures’, the inclusion of trade union representatives on the list of ‘prescribed persons’, the promotion of a constantly updated list without the need for statutory reform, the introduction of statutory regulatory bodies and the need to outlaw gagging clauses in the public sector. Whistleblowing remains a prominent issue, which continues to permeate our lives, for the better. However, in order for whistleblowers to disclose about malpractice in the workplace openly and with impunity, we must endeavour to treat them as heroes, not pariahs.