Following consultation, the Government has confirmed that it intends to introduce powers for employment tribunals to pass on to regulators details of whistle blowing claims.
A claimant who lodges a claim with the employment tribunal will have the option to tick a box on his claim form (ET1) confirming that he would like the tribunal to pass on details of his claim. It will then fall to tribunal staff to identify the relevant regulator to whom a referral should made (e.g. the FSA or the SFO) and the substance of the allegations to be referred from the claimant's ET1. No information will be provided to the regulator about whether the employer denies the allegations, nor will details be provided of the employer's defence (ET3) or the outcome of the proceedings.
The new process will apply to ET1 forms lodged with the tribunal from 6 April 2010. Both the claimant and the employer will be notified when the tribunal has referred whistle blowing allegations to a regulator.
The new process is likely to be unwelcome for many employers as it could be used by employees to put pressure on employers who wish to carefully manage the provision of information to the regulator through a controlled process. Of course an employee can always blow the whistle directly to a regulator. But whistle blowing legislation only protects an employee who makes a "protected disclosure" directly to a prescribed regulator in good faith other than for personal gain and the employee must believe the facts disclosed to be "substantially true". The tick box process on the ET1 form could therefore be used as a back door route for disclosures that may not meet this test. Employees who owe duties to notify a regulator directly of certain matters, e.g. approved persons, will need to think carefully before using the back door route.