The Public Interest Disclosure (NI) Order 1998 protects workers from being dismissed or suffering detriment as a result of raising a protected disclosure. The reporting of such disclosures is more commonly known as Whistleblowing. But what exactly is a protected disclosure?
The Order specifies that a protected disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
(a) Commission of a criminal offence
(b) Failure to comply with a legal obligation
(c) Miscarriage of justice
(d) Endangerment of health and safety of an individual
(e) Damage to the environment
A worker must also satisfy that they had a reasonable belief that they were making the protected disclosure in the public interest, in order to enjoy protection under the legislation.
Where a claim to the Industrial Tribunal is concerned, it will be for the Claimant to prove that their disclosure falls under one of the above categories. In the recent oral decision handed down in Philip Jackson -v- Serious Fraud Office, an Industrial Tribunal panel in London found that Mr Jackson had failed to demonstrate that he made protected disclosures. Mr Jackson had alleged that management had instructed him not to record certain observations relating to cases in writing, arguing that same was in breach of the prosecution code of practice. However, the Tribunal accepted SFO’s explanation that the instruction was a procedural request intended to ensure staff exercised caution when commenting on case files, as opposed to an attempt to conceal wrongdoing.
It may not always be clear to an employer that a protected disclosure is being made by an employee. A protected disclosure can by communicated verbally or in writing, whether expressly identified as a disclosure or not. A whistleblower may raise that they have suffered detriment because of making a protected disclosure via the formal grievance procedure. Whilst dismissal as a result of raising a protected disclosure is a clear disadvantage; detriment may also appear in more subtle forms. An employer should be live to the fact that a whistleblower may be subject to criticism or, in worse cases, bullying and harassment by colleagues as a result of raising a protected disclosure. Additionally, should a whistleblower be demoted or laterally transferred to a less attractive role after raising a protected disclosure, this may potentially be found to amount to detriment.
Employers would be well advised to have a Whistleblowing Policy in place, under which whistleblowing disclosures or any complaints in respect of same can be formally investigated. Such a policy may encourage employees to speak up about any acts of wrongdoing at the earliest stage and would give an employer the opportunity to address the issue before any financial or reputational damage arises.
If you require further advice in relation to protected disclosures, or assistance with drafting a Whistleblowing Policy, please get in touch with Grainne Rice, Solicitor in our Employment Department on 028 9043 4015 or email [email protected].
028 9043 4015 