An industrial tribunal in Belfast has struck out a claim of protected interest disclosure detriment against the Department for Communities (DfC), ruling that the department had no reasonable prospect of success.

The case was brought by Mairead McCafferty, former Chief Executive Officer of the Office of the Commissioner for Children and Young People for Northern Ireland (NICCY). Ms McCafferty alleged that DfC had acted as an agent of the Commissioner, Chris Quinn, with his authority, in relation to the handling of her protected disclosures. The tribunal found it was not arguable that DfC acted as an agent of the Commissioner.

The tribunal heard that Ms McCafferty was employed by NICCY from 1 February 2012 until her resignation took effect on 17 July 2024. She lodged a first claim on 11 July 2024 and a second claim on 20 August 2024, naming DfC, the Commissioner, and Mr Quinn as respondents. The remaining claim against DfC was for protected interest disclosure detriment under Article 70B of the Employment Rights (Northern Ireland) Order 1996.

DfC argued that it was never the employer of Ms McCafferty and that claims under Article 70B can only lie against an employer or an agent of the employer acting with the employer's authority. Ms McCafferty's legal team conceded that DfC was not her employer but argued that it had acted as an agent of the Commissioner.

Employment Judge N Kelly considered the legal framework, including the decision in Hoppe v HM Revenue and Customs, which held that a sponsoring government department is not an agent of the body it sponsors. The judge found that DfC acted as the sponsoring department for NICCY, exercising functions conferred by statute or assigned by the First Minister and deputy First Minister. Its authority did not derive from the Commissioner.

The judge concluded that the purpose of Article 70B(1A)(b) was to extend vicarious liability to agents appointed by the employer to carry out duties on its behalf. It was not arguable that a government department acted as an agent of the Commissioner. The claim was struck out under Rule 32(1)(a) of the Industrial Tribunals and Fair Employment Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020.

At the preliminary hearing, the tribunal also dismissed claims of constructive unfair dismissal against DfC and Mr Quinn, as those were withdrawn. The constructive unfair dismissal claim against the Commissioner remains to be determined.

The tribunal noted that the full hearing of the remaining claims is listed for 26 April 2027 to 5 May 2027.