Protected Disclosures

The Public Interest Disclosure (Northern Ireland) Order 1998 provides the legislative basis for whistleblowing in the public interest. A protected disclosure is a qualifying disclosure made by an employee in accordance with the procedures below. A qualifying disclosure is a disclosure which, in the reasonable opinion of the employee making the disclosure, tends to show that:

• A criminal offense has been committed, is being committed, or is likely to be committed.
• A person has failed, or is failing to comply with the legal obligation to which they are subject.
• A miscarriage of justice has occurred, is likely to occur, or is occurring.
• The health or safety of an individual is being or is likely to be endangered or has been endangered.
• The environment has been, is being, or is likely to be damaged.
• Information tending to show any matter falling within the above categories has been, is being, or is likely to be deliberately concealed.

A disclosure is not a qualifying disclosure if its disclosure would be a criminal offense. This will be the case in relation to official secrets and matters protected by national security. A disclosure of information that should attract legal or professional privilege is not a qualifying disclosure if it is made by a person who has obtained the information in the course of obtaining legal advice.

A qualifying disclosure is one made by an employee in good faith to their employer or where they reasonably believe that the relevant failure relates solely or mainly to the conduct of another person or any matter for which a person other than the employer has legal responsibility to that other person.

An employee who, in accordance with a procedure whose use is authorized by an employer, makes a qualifying disclosure to a person other than their employer, is to be treated as making the qualifying disclosure to their employer. A qualifying disclosure may be made in the course of obtaining legal advice. If the employer is a statutory entity, a Minister, or a Department, and the disclosure is made in good faith to a Minister or a Department, it is deemed to be made.

A qualifying disclosure is made in accordance with the legislation if the employee makes the disclosure in good faith, to a person prescribed by regulations, and reasonably believes that the relevant failure falls within a description of matters for which that person is so prescribed, and the information disclosed or anything alleged in it is substantially true.

A qualifying disclosure in other cases is compliant if the employee makes the disclosure in good faith; reasonably believes the information disclosed and allegations contained in it are substantially true; does not make the disclosure for the purpose of personal gain; and any of the below conditions are met and, in all the circumstances, it is reasonable for them to make the disclosure.

The conditions above are that when they make the disclosure, they reasonably believe that they will be subject to a detriment by their employer if they make it to their employer.

In the case where no person is prescribed to whom to make the disclosure in relation to the matter, the employee reasonably believes that it is likely that evidence relating to the failure would be concealed or destroyed if they make the disclosure to their employer, or the employee has previously made a disclosure of substantially the same information to their employer, or in accordance with the procedure above.

In determining whether it is reasonable for an employee to make the disclosure, regard is to be had to the identity of the person to whom the disclosure is made, the seriousness of the failure, whether the relevant failure is continuing or likely to occur in the future, whether it is made in breach of a duty of confidentiality owed by the employer to any other person.

In a case relating to a previous disclosure, any action which the employer or the person might reasonably be expected to take as a result of the previous disclosure, and in a case of a previous disclosure to an employee, whether in making the disclosure to an employer, the employee complied with the procedures whose use was authorized by the employer.

A disclosure is to be made if the employee makes a disclosure in good faith, reasonably believes the information and allegations are substantially true, does not make it for personal gain, and the relevant failure is of an exceptionally serious nature, and in all the circumstances, it is reasonable to make the disclosure. Regard must be had to the identity of the person to whom the disclosure is made.

Each of the above are alternative grounds on which a qualified disclosure is duly made.

Provision in an agreement is void insofar as it purports to preclude employees from making a protected disclosure. This applies to an agreement to refrain from instituting or continuing any proceedings under the legislation or proceedings for a breach of contract.

An employee for the purpose of the legislation includes certain persons who are not technically employees but who are positioned substantially similarly to employees.

An employee has a right not to be subject to any detriment by any act or any deliberate failure to act by their employer, done on the ground that the person has made a protected disclosure. A person may make a complaint to an Industrial Tribunal that they have been subject to detriment in contravention of the above provision.

The person may claim compensation for unfair dismissal. A dismissal by reason or by the principal reason for which is that the employee has made a protected disclosure is deemed unfair.