In a legislative order published last week and effective from 1 October, Northern Ireland brought into force provisions contained within the Employment Act (Northern Ireland) 2016. These remove a requirement for a whistleblowing disclosure to be made in good faith, introduce regulations requiring companies to produce annual reports on disclosures of information made by workers, and introduce a vicarious liability provision for employees who are discriminated against after making a protected disclosure.
The definition of 'worker' is also extended to student nurses and student midwives undertaking work experience as part of their training, in order to cover them with the new public interest test.
The UK government amended whistleblowing legislation in 2013 in the Enterprise and Regulatory Reform Bill, when it removed the good faith requirement and strengthened public interest tests.
Employment law expert Craig Patterson of Pinsent Masons, the law firm behind Out-Law.com, said the introduction of the public interest test and removal of the good faith requirement shifted the focus from the motives of the whistleblower to the allegations they were making.
“With the good faith requirement, there was a feeling that there was too much focus on the messenger rather than the message,” Patterson said.
Patterson said the introduction of the requirement that disclosure is made in the public interest is intended to ensure that personal disputes were not brought within the scope of protection. Developments in case law in Great Britain since 2013 have so far suggested that the public interest test is not as difficult to meet as was first thought.
Patterson said Northern Irish employers should also be aware that the changing legislation allows claims to be brought against individuals, including board members, as well as companies – in a similar way to discrimination claims. Individuals who are found to have subjected a worker to a detriment can be joint and severally liable for any financial award.
A number of elements of the Employment Act 2016 are yet to be implemented and have been held up as Northern Ireland currently has no government, since the collapse of its executive in January. Patterson warned that employers should be ready for more regulations to be implemented at any time, including gender pay gap reporting rules and restrictions on zero-hours contracts.