09 March 2021 - Post by:Robbie Sinclair
The motive of a whistleblower is often questioned, with good reason. Disclosures of malpractice or wrongdoing are often made in the context of performance management, a dismissal, or a grudge by a disgruntled worker. From an employer’s perspective, this can downgrade the disclosure because it was made for ulterior motives.
But should the whistleblower’s motive matter?
For example, the three-time Grand National-winning horse trainer, Gordon Elliott, was recently banned for 12 months for casually sitting on a dead horse while taking a phone call. The Irish Horseracing Regulatory Board (IHRB) ruled that Elliott acted in a way which was prejudicial to the interests of horse racing and the good reputation of the sport.
There are no two ways about it: the photo was shocking. The horse racing community and all who love horses and the sport were almost speechless. Does it matter why the photo was posted on social media? Does it matter if the motive was to discredit Elliott? The IHRB was very critical of Elliott’s conduct but it was also mindful of what it called “the sinister aspect of the case” in that the photo was published as part of a concerted attack on Elliott. Why does that matter? Most importantly, the photo would never have come to light without that alleged “sinister” aspect.
In a workplace context, whistleblowers will still be protected under the legal regime, even if their motives are mixed. Originally, good faith played a greater role as the individual’s predominant motive had to be “to remedy the wrong that occurred”. This has been replaced with the “public interest” test, although motive/good faith could result in a reduction of the award for the claimant. The reason for removing the good faith test is that the raison d’etre of whistleblowing is to expose a wrongdoing in order to remedy it. The whys and wherefores matter not. If employers focus on the “what”, then it is more likely to create a culture where employees feel able to speak up.
From my perspective, the IHRB has missed the opportunity to embrace the importance of speaking up, welcome the opportunity for further disclosures, and provide a means for those in the industry to speak up, free from retaliation. Without this, the perception of horse racing being a closed shop will continue and the opportunity to improve the culture will have been lost.