Whistleblowing

Employers should ensure that no one is subjected to a detriment or dismissed from their employment for reporting the malpractices (known as whistleblowing) of their employers or third parties as this may be a protected act under the Public Interest Disclosure Act 1998 (PIDA).

If a worker brings a successful whistleblowing claim against you, the compensation is not capped. Employers should therefore seek to educate their staff and introduce a whistleblowing policy.

What is a qualifying disclosure?

You need to ascertain if the worker has made a “qualifying disclosure” in order to establish if they will be protected under PIDA. This is based on the following:

  • Disclosure of information: there must be a disclosure of information. The worker must disclose facts, either verbally or in writing. Gathering of information or evidence or threatening to make a disclosure will not be sufficient.
  • Subject matter of disclosure: The information the worker disclose must relate to one or more of the following malpractices:
    • Criminal offences;
    • Breach of any legal obligation;
    • Miscarriages of justice;
    • Danger to the health and safety of any individual;
    • Deliberate damage to the environment; or
    • The deliberate concealing of information about any of the above.
  • Reasonable belief: The worker must have a reasonable belief that the information they disclose tends to show one or more of the malpractices listed above.
  • Public interest: The disclosure must, in the worker’s reasonable belief, be in the public interest.

Is it also a protected disclosure?

A qualifying disclosure must also amount to a protected disclosure to be covered by PIDA but this will usually depend on to whom the disclosure was made. As a general rule, the disclosure should have been made to you to amount to a protected disclosure. Disclosures to third parties may be protected disclosures but only if more stringent conditions are met.

Is there a qualifying service requirement for a whistleblowing claim?

There is no qualifying service requirement for an employee or worker to bring a claim for suffering a detriment or dismissal as a result of whistleblowing.

Is there a defence for a whistleblowing claim?

Whistleblowing claims can be fairly complex and it is an area of law that can be misinterpreted. It is for the Claimant to identify why the disclosure was protected. You can defend a claim by establishing a positive case as to why the Claimant was treated in a particular way (which they allege was a detriment) or why there were dismissed.

Having a clear whistleblowing policy on the reporting of qualifying disclosures will also assist a defence if you can show the employee was aware of the policy but chose not to follow it.

Remedies

If an employee or worker successfully brings a whistleblowing claim, the ET has the power to order the payment of compensation. The compensation differs depending on whether the claim is one of detriment or dismissal. In detriment cases, an award similar to an injury to feelings award in discrimination can be awarded. In dismissal cases, compensation for loss of earnings is awarded. There is no financial cap on the compensation that can be awarded in either type of claim.

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