Whistleblowing: whose interest is it in?March 4, 2016
The law relating to whistleblowing in Northern Ireland will shortly be amended by the Employment Bill which is currently working its way through the Northern Ireland Assembly. The proposed changes will mirror recent reform of whistle blowing legislation in England & Wales following the EAT decision in Parkins -v- Sodexho. This case created a loophole where employees could rely on the protections afforded to whistle blowers where they raise an allegation about a breach of their own employment contract.
As had been the case in England & Wales, in Northern Ireland the current position is that a qualifying disclosure must be made in “good faith”. The Employment Bill seeks to change the test to one where whether or not the whistleblower will receive protection is conditional on the disclosure being made in the public interest. There will be no requirement that the disclosure must be made in “good faith” and the issue of good faith will only now be considered by a tribunal in relation to remedy, rather than liability.
Following the changes to the law in England & Wales the issue has continued to be the subject of a number of Employment Appeal Tribunal decisions which are likely to be relevant as to how the new provisions will be applied in Northern Ireland. The case of Chesterton Global Limited v Nurmohamed has evidenced the wide approach taken by the Employment appeal Tribunal (EAT) in relation to the new “public interest” test. Nurmohamed brought a whistleblowing claim alleging that accounts had been altered by his employer to prevent himself and approximately 100 others from receiving commission to which they were entitled. The EAT held that a quantity of 100 people could been seen as constituting „the public‟ for the purpose of whistleblowing protection. It did not matter that all 100 individuals worked for the same company. This case also emphasises that it is the whistleblower‟s reasonable belief that is critical in meeting the standard – not whether the claim indeed involves an issue of public interest. Nurmohamed‟s claim was not viewed as personal, despite his own loss, as he believed the disclosure to be vital for all who had suffered as a result of his employers actions. This decision is currently the subject of an appeal to the Court of Appeal and a question therefore remains over whether reasonable belief that a disclosure is in the public interest is enough.
This broad interpretation was again adopted by the EAT in Underwood v Wincanton Plc which involved a written complaint by four drivers that overtime has been unfairly withheld by their employer on the basis that certain drivers had raised issues with their vehicle safety. The EAT held that the tribunal erred in striking out the whistle blowing claim on the ground that the claim was in the interest of only four employees and therefore did not meet the threshold for public interest. While there is no strict rule as to how many employees need to be affected before a claim can be held to be in the public interest, it can be said with certainty that a disclosure of a personal interest will not constitute a public benefit. That said it is likely that following implementation of the Employment Bill the Industrial Tribunal in Northern Ireland will follow the precedents set in these recent EAT cases and therefore “public interest” may be given a broad interpretation.
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