A disclosure qualifying for protection under the Order is known as a ‘qualifying disclosure’.
Such a disclosure is allowed in the following circumstances:
- where criminal activity or breach of civil law has occurred, is occurring, or is likely to occur
- where a miscarriage of justice has occurred, is occurring or is likely to occur
- where health and safety has been, is, or is likely to be compromised
- where the environment has been, is being or is likely to be damaged
- where information indicating evidence of one of the above circumstances is being or is likely to be deliberately concealed
It makes no difference whether the circumstance leading to the breach is within or outside of the UK, as long as either UK law or the law of the other jurisdiction prohibits it.
A qualifying disclosure must only be made:
- in good faith to the individual’s employer, or to any other person having legal responsibility for the conduct complained of
- for the purpose of obtaining legal advice
- where the worker is employed by the Crown or a NI department, in good faith to a Minister of the Crown or the NI department
- in good faith to a person prescribed in subordinate legislation made under the Order
Under this Order, the worker must reasonably believe that any allegation he makes is substantially true.
If it is the employer who is responsible for the conduct complained of, the Order allows a worker to make a disclosure to a person not noted above, provided the following conditions are met:
- it must be made in good faith, and not for personal gain, with a reasonable belief that the allegations complained of are true
- the worker reasonably believes he will suffer a detriment if he makes the disclosure to his employer
- he has previously complained of the conduct and no action has been taken
- he reasonably believes that evidence of the conduct has been or will be destroyed or concealed
Such a disclosure will be subject to a test of reasonableness, which is tested with reference to:
- the person the disclosure was made to
- the seriousness of the conduct complained of
- whether the conduct is continuing
- whether any previously made complaint was acted upon
- whether the worker followed any procedure laid down by the employer
Records management considerations
Staff should be made aware of the correct procedures to be followed if circumstances arise that require them to breach confidentiality and any policy guidance/DHSSPS Circular on ‘Public Interest Disclosure’ available on the issue.