Whistleblowing

Isle of Man law[1] protects workers who make a disclosure of information about alleged wrongdoing subject to certain conditions. The basic requirements to be protected are that:

• the person making the disclosure must be a “worker”
• the information revealed must be of the “right type” – ie a qualifying disclosure
• it must be revealed to the right person and in the right way (making it a “protected disclosure”)

All “workers” (including employees) are protected from being subject to a detriment as a result of whistleblowing. If an employee is dismissed for whistleblowing, this is automatically unfair.

The subject matter of a protected disclosure can potentially be wide and covers various types of alleged “wrongdoing”. The worker making the protected disclosure needs to have a reasonable belief that the information divulged tends to show one or more of the following is happening, has happened, or is likely to happen (a “relevant failure”):

• criminal offence
• breach of a legal obligation
• miscarriage of justice
• danger to health & safety of an individual
• damage to the environment
• deliberate concealment of information relating to any of the above

It does not matter that the relevant failure takes place overseas or that the law applying to the relevant failure is not Isle of Man law.

To be a “protected disclosure” it must be made to the worker’s employer or other responsible person (ie someone other than the employer whom the worker reasonably believes exercises responsibility for, and has legal control over, the conduct of the person responsible for the relevant failure), to the worker’s (qualified) legal adviser, relevant regulator or someone else where there is a good reason for not reporting to the employer or a regulator. This is not an exhaustive list; under secondary legislation, various additional offices, bodies and Government departments are designated for these purposes[2].

The class of person or persons to whom a whistleblowing disclosure may be made was consulted on earlier this year with a view to potentially widening it[3] but it remains to be seen if changes are brought into effect.

In alleging that they have suffered a detriment or been dismissed due to whistleblowing, the worker needs to show a causal link between making the protected disclosure and the detrimental treatment. For “detriment” the test is that the treatment complained of was done “on the ground” that they made a protected disclosure[4]. In relation to “dismissal”, an employee will be regarded as being unfairly dismissed if the reason, or the principal reason, is that they made a protected disclosure within the meaning defined in the legislation[5].

Unlike compensation for ordinary unfair dismissal (presently capped at £56,000), the tribunal has power to make an unlimited award in the case of dismissal for making a protected disclosure and can also make a further award for injury to feelings. There have been one or two notable Isle of Man cases concerning whistleblowing in which sums awarded have been far in excess of £56,000[6].

This makes the area of whistleblowing a fertile one for complainants to explore when setting out their tribunal case. It is also, increasingly, an angle of which the tribunal (and employers) are becoming aware with consequent focus on chronology of events and causation in whistleblowing cases. As a result, the tribunal is often willing to make a determination as to whether the complainant has made any actionable protected disclosures before the parties progress further in litigation.

The statutory whistleblowing provisions override any term of an agreement between a worker and his or her employer which would prevent the worker from making a protected disclosure. (In effect, any clause in an agreement which seeks to do this would be void.) This may be particularly relevant in the context of compromise agreements where, typically, a non-disclosure obligation will be imposed on the relevant individual.

As from Spring 2025, certain changes are to be introduced into the regime for whistleblowing. These include:

• a new “public interest” test for making a protected disclosure
• the requirement to make a disclosure “in good faith” will be removed but the tribunal could reduce compensation in an appropriate case
• vicarious liability for employers will be introduced to prevent detrimental treatment of a whistleblower by other employees on behalf of the employer
• provision for it to be made clear that a protected disclosure has been made

There have been a number of published decisions of the Employment & Equality Tribunal relating to whistleblowing. Whilst each case turns on its own facts, there have been some helpful principles and learning points arising from them including the Ranson[7] decision which was referred to when most recent changes to the whistleblowing framework were considered by Tynwald. A number of the cases have focused on whether, in fact, protected disclosures were made by the complainant leading the tribunal to clarify that, for example, a protected disclosure must involve a disclosure of specific “facts” as compared with an imprecise, vague and/or general point without factual content[8]. On this basis it is also helpful to note that a mere allegation is not a protected disclosure, nor is opinion[9].

Assuming that the complainant demonstrates they have made one or more protected disclosures, the onus is then on the respondent to prove that any alleged detriment or the dismissal of the employee is not due to the fact that the complainant made the protected disclosures. The tribunal in considering this point will assess whether the employer has discharged the burden of showing an alternative reason and whether they have acted reasonably in the circumstances and particular context.

Tips for employers in preventing and responding to whistleblowing allegations:

• Have a positive “speak up” culture and actively respond/engage with concerns raised at management level – this means that non-genuine whistleblowing cases are likely to be more readily dismissed (and obvious to the tribunal) and the employer will not be in “reactive” mode should an employee drop the “W” bomb!
• Put in place a documented whistleblowing policy which covers what a whistleblowing disclosure may be in respect of and to whom a disclosure may be made etc. Ensure that it prevents retaliation by other employees against the whistleblowing employee.
• Follow up on concerns identified under the whistle blowing procedure (and more generally) – the tribunal will be looking to see if an employer took concerns seriously and implemented any remedial measures if required (ie rather than “penalise” the employee). Needless to say, “listening” and taking appropriate action are also key elements of an effective risk management strategy.
• Record how concerns are dealt with and evidence consideration and constructive engagement with any matters raised.
• Remember you cannot stop an employee making a genuine protected disclosure or speaking up about a real concern – nor should you want to. This may need to be reflected in any employment settlements (ie as a carve out to non-disclosure provisions). You can, however, compromise statutory employment rights claims including automatic unfair dismissal – which may be the claimed results of an employee making a protected disclosure.

We can: help you put in place effective risk mitigation and whistleblowing strategies that reduce the prospects of employees bringing viable claims, assist with the resolution of workplace disputes and grievances (which is often where a whistleblowing claim originates) plus help you strategise your response to, and defend, any formal claims or complaints an individual may bring forward.

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References:-

[1] Employment Act 2006, Part IV

[2] https://www.tynwald.org.im/spfile?file=/links/tls/SD/2021/2021-SD-0001.pdf

[3] https://consult.gov.im/economic-development/whistleblowing-to-prescribed-persons/supporting_documents/Consultation%20paper%20%20Whistleblowing%20to%20prescribed%20persons%20v3.pdf

[4] Section 64 of the Employment Act 2006

[5] Section 118 Employment Act 2006

[6] Eg Creechurch Capital (£685,000 reduced by £90,000 on appeal) and Ranson v DHSC (£3.2m plus proportion of costs)

[7] Ranson v Department of Health & Social Care

[8] Jones v MUA Case No 18/27 (applying Kilraine v Wandsworth LBC and Cavendish Munro PRM v Geduld)

[9] Niamh Kelly v DHSC Case No 20/45 at 218

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Useful Resources:-

Public Interest Disclosure (Prescribed Persons) Order 2021

https://www.gov.im/media/1381033/whistleblowing-a-brief-guide-november-2023-091123.pdf

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