- Statutory Instrument 1998 No. 1763 (N.I. 17)
The Public Interest Disclosure (Northern Ireland) Order 1998
© Crown Copyright 1998
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| Made | 21st July 1998 | ||
| Laid before Parliament | 22nd July 1998 | ||
| Coming into operation in accordance with Article 1(2) and (3) |
| 1. | Title and commencement. |
| 2. | Interpretation. |
| 3. | Protected disclosures. |
| 4. | Interpretative provisions of 1996 Order. |
| 5. | Right not to suffer detriment. |
| 6. | Complaints to industrial tribunal. |
| 7. | Limit on amount of compensation. |
| 8. | Unfair dismissal. |
| 9. | Redundancy. |
| 10. | Exclusion of restrictions on right not to be unfairly dismissed. |
| 11. | Dismissal of those taking part in unofficial industrial action. |
| 12. | Compensation for unfair dismissal. |
| 13. | Interim relief. |
| 14. | National security. |
| 15. | Work outside Northern Ireland. |
| 16. | Police officers. |
| 17. | Remedy for infringement of rights. |
| 18. | Amendment to the Shops (Sunday Trading &c.) (Northern Ireland) Order 1997. |
Whereas this Order is made only for purposes corresponding to those of the Public Interest Disclosure Act 1998:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 (as modified by section 17 of the said Act of 1998) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: -
Title and commencement
1. - (1) This Order may be cited as the Public Interest Disclosure (Northern Ireland) Order 1998.
(2) Subject to paragraph (3), this Order shall come into operation on such day or days as the Department of Economic Development may by order appoint.
(3) The following provisions shall come into operation on the expiration of 7 days from the day on which this Order is made -
-
(a) this Article;
(b) Article 2;
(c) Article 3 so far as relating to the power to make an order under Article 67F of the 1996 Order; and
(d) Article 12 so far as relating to the power to make regulations under Article 162B of the 1996 Order.
Interpretation
2.
- (1) The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order "the 1996 Order" means the Employment Rights (Northern Ireland) Order 1996.
Protected disclosures
3.
After Part V of the 1996 Order there shall be inserted -
Meaning of "protected disclosure"
67A. In this Order a "protected disclosure" means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.
Disclosures qualifying for protection
67B. - (1) In this Part a "qualifying disclosure" means 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) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of paragraph (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).
Disclosure to employer or other responsible person
67C.
- (1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith -
-
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to -
-
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.
Disclosure to legal adviser
67D.
A qualifying disclosure is made in accordance with this Article if it is made in the course of obtaining legal advice.
Disclosure to Minister of the Crown or a Northern Ireland department
67E.
A qualifying disclosure is made in accordance with this Article if -
-
(a) the worker's employer is -
-
(i) an individual appointed under any statutory provision by a Minister of the Crown or a Northern Ireland department, or
(ii) a body any of whose members are so appointed, and
(b) the disclosure is made in good faith to a Minister of the Crown or a Northern Ireland department.
Disclosure to prescribed person
67F.
- (1) A qualifying disclosure is made in accordance with this Article if the worker -
-
(a) makes the disclosure in good faith to a person prescribed by an order made by the Department for the purposes of this Article, and
(b) reasonably believes -
-
(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
(2) An order prescribing persons for the purposes of this Article may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.
Disclosure in other cases
67G.
- (1) A qualifying disclosure is made in accordance with this Article if -
-
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) any of the conditions in paragraph (2) is met, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) The conditions referred to in paragraph (1)(d) are -
-
(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with Article 67F,
(b) that, in a case where no person is prescribed for the purposes of Article 67F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(c) that the worker has previously made a disclosure of substantially the same information -
-
(i) to his employer, or
(ii) in accordance with Article 67F.
(3) In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to -
-
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the future,
(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(e) in a case falling within paragraph (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with Article 67F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f) in a case falling within paragraph (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this Article a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in paragraph (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.
Disclosure of exceptionally serious failure
67H.
- (1) A qualifying disclosure is made in accordance with this Article if -
-
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) the relevant failure is of an exceptionally serious nature, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.
Contractual duties of confidentiality
67J.
- (1) Any provision in an agreement to which this Article applies is void in so far as it purports to preclude the worker from making a protected disclosure.
(2) This Article applies to any agreement between a worker and his employer (whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Order or any proceedings for breach of contract.
Extension of meaning of "worker" etc. for Part VA
67K.
- (1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by Article 3(3) but who -
-
(a) works or worked for a person in circumstances in which -
-
(i) he is or was introduced or supplied to do that work by a third person, and
(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked,by thethird person orby both ofthem,
(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within Article 3(3)(b) if for "personally" in that provision there were substituted "(whether personally or otherwise)",
(c) works or worked as a person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made by a Health and Social Services Board under Article 56, 61, 62 or 63 of the Health and Personal Social Services (Northern Ireland) Order 1972, or
(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than -
-
(i) under a contract of employment, or
(ii) by an educational establishment on a course run by that establishment;
and any reference to a worker's contract, to employment or to a worker being "employed" shall be construed accordingly.
(2) For the purposes of this Part "employer" includes -
-
(a) in relation to a worker falling within sub-paragraph (a) of paragraph (1), the person who substantially determines or determined the terms on which he is or was engaged,
(b) in relation to a worker falling within sub-paragraph (c) of that paragraph, the board referred to in that sub-paragraph, and
(c) in relation to a worker falling within sub-paragraph (d) of that paragraph, the person providing the work experience or training.
(3) In this Article "educational establishment" includes any university, college, school or other educational establishment.
Other interpretative provisions
67L.
- (1) In this Part -
-
"Northern Ireland department" includes the head of a Northern Ireland department;
-
"qualifying disclosure" has the meaning given by Article 67B;
-
"the relevant failure", in relation to a qualifying disclosure, has the meaning given by Article 67B(5).
(2) In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any statutory provision.
(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.".
Interpretative provisions of 1996 Order
4.
- (1) In Article 2(3) of the 1996 Order (interpretation) after the definition of "position" there shall be inserted -
-
"
"protected disclosure" has the meaning given by Article 67A,".
(2) At the end of Article 3 of the 1996 Order (employees, workers etc.) there shall be added -
-
"
(6) This Article has effect subject to Articles 67K and 70B(3); and for the purposes of Part XV so far as relating to Part VA or Article 70B, "worker", "worker's contract" and, in relation to a worker, "employer", "employment" and "employed" have the extended meaning given by Article 67K.".
Right not to suffer detriment
5.
After Article 70A of the 1996 Order there shall be inserted -
-
"
Protected disclosures
70B. - (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of Article 240, Part XI does not apply to the dismissal, this Article does not apply where -
-
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of that Part).
(3) For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by Article 67K.".
Complaints to industrial tribunal
6.
- (1) Article 71 of the 1996 Order (complaints to industrial tribunals) shall be amended as follows.
(2) After paragraph (1) there shall be inserted -
-
"
(1A) A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.".
(3) In paragraph (2) for "On such a complaint" there shall be substituted "On a complaint under this Article".
Limit on amount of compensation
7.
- (1) Article 72 of the 1996 Order (remedies) shall be amended as follows.
(2) At the beginning of paragraph (2) there shall be inserted "Subject to paragraph (6),".
(3) After paragraph (5) there shall be added -
-
"
(6) Where -
-
(a) the complaint is made under Article 71(1A),
(b) the detriment to which the worker is subject is the termination of his worker's contract, and
(c) that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part XI if the worker had been an employee and had been dismissed for the reason specified in Article 134A.".
Unfair dismissal
8.
After Article 134 of the 1996 Order there shall be inserted -
-
"
Protected disclosure
134A. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.".
Redundancy
9.
In Article 137 of the 1996 Order (redundancy) after paragraph
(5) there shall be inserted -
-
"
(5A) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in Article 134A.".
Exclusion of restrictions on right not to be unfairly dismissed
10.
- (1) In Article 140(3) of the 1996 Order (cases where qualifying period of employment not required), after sub-paragraph (e) there shall be inserted -
-
"
(ee) Article 134A applies,".
(2) In Article 141(2) of the 1996 Order (disapplication of upper age limit), after sub-paragraph (e) there shall be inserted -
-
"
(ee) Article 134A applies,".
Dismissal of those taking part in unofficial industrial action
11.
In Article 143 of the 1996 Order (dismissal of those taking part in unofficial industrial action), in paragraph (2) (which provides that the exclusion of the right to complain of unfair dismissal does not apply in certain cases) after sub-paragraph (c) there shall be inserted -
-
"
(cc) Article 134A applies,".
Compensation for unfair dismissal
12.
- (1) In Article 146(4) of the 1996 Order (compensation for unfair dismissal) after "Articles 152 to 162A" there shall be inserted "or in accordance with regulations under Article 162B".
(2) In Article 151 of that Order (enforcement of order for reinstatement or re-engagement) -
-
(a) in paragraph (2) after "Article 158" there shall be inserted "and to regulations under Article 162B", and
(b) in paragraph (3) after "and (2)" there shall be inserted "and to regulations under Article 162B".
(3) In Article 152 of that Order (general provisions as to unfair dismissal), at the beginning of paragraph (1) there shall be inserted "Subject to regulations under Article 162B,".
(4) After Article 162A of the 1996 Order there shall be inserted -
-
"
Dismissal as a result of protected disclosure
162B. - (1) This Article applies where the reason (or, if more than one, the principal reason) -
-
(a) in a redundancy case, for selecting the employee for dismissal, or
(b) otherwise, for the dismissal,
is that specified in Article 134A.
(2) The Department may by regulations provide that where this Article applies any award of compensation for unfair dismissal under Article 146(4), 151(1) or 151(3) shall, instead of being calculated in accordance with the provisions of Articles 151 to 162A, consist of one or more awards calculated in such manner as may be prescribed by the regulations.
(3) Regulations under this Article may, in particular, apply any of the provisions of Articles 151 to 162A with such modifications as may be specified in the regulations.".
Interim relief
13.
In Articles 163(1)(b) and 164(1) of the 1996 Order (which relate to interim relief) after "134" insert ", 134A".
National security
14.
- (1) Article 238 of the 1996 Order (national security) shall be amended as follows.
(2) In paragraph (2) -
-
(a) after sub-paragraph (c) there shall be inserted -
-
"
(cc) Part VA,";
(b) for sub-paragraph (d) there shall be substituted -
-
"
(d) in Part VI, Article 70B and Chapter II,".
(3) After paragraph (3) there shall be added -
-
"
(4) Part VA and Articles 70B and 134A do not have effect in relation to employment for the purposes of the Security Service or the Secret Intelligence Service.".
Work outside Northern Ireland
15.
- (1) Article 239 of the 1996 Order (employment outside Northern Ireland) shall be amended as follows.
(2) After paragraph (3) there shall be inserted -
-
"
(3A) Part VA and Article 70B do not apply to employment where under the worker's contract he ordinarily works outside Northern Ireland.".
(3) In paragraph (5), after "paragraphs (2)" there shall be inserted ", (3A)".
Police officers
16.
In Article 243 of the 1996 Order (police officers), in paragraph (1) (which lists provisions of the Order which do not apply to employment under a contract of employment in police service, or to persons engaged in such employment) after "Part V," there shall be inserted "Part VA,".
Remedy for infringement of rights
17.
In Article 247 of the 1996 Order (remedy for infringement of certain rights) after paragraph (1) there shall be inserted -
-
"
(1A) In relation to the right conferred by Article 70B, the reference in paragraph (1) to an employee has effect as a reference to a worker.".
Amendment to the Shops (Sunday Trading &c.) (Northern Ireland) Order 1997
18.
In paragraph 10(11) of Schedule 2 to the Shops (Sunday Trading &c.) (Northern Ireland) Order 1997 -
-
(a) after "employee" there shall be inserted "or, as the case may be, worker", and
(b) for "70 or 70A" there shall be substituted "70, 70A or 70B".
N.H. Nicholls
Clerk of the Privy Council
(This note is not part of the Order)
This Order is made only for purposes corresponding to those of the Public Interest Disclosure Act 1998.
This Order amends the Employment Rights (Northern Ireland) Order 1996 to protect workers who disclose certain kinds of information from being dismissed or penalised as a result of the disclosure.
ISBN 0 11 079312 9