The Government has launched a consultation on its proposal to send details of Employment Tribunal claims from alleged 'whistleblowers' to the appropriate regulator so that they can investigate the whistleblower's allegations.
Employers should be aware that in the future, any 'whistleblowing' claims submitted to the Employment Tribunal by an employee or former employee could lead to their company or organisation being subjected to an investigation by a regulatory body.
However, as these proposals are still subject to public consultation and Parliamentary approval, they will not come into force until April 2010 at the earliest. We will therefore update readers on these proposals when the final regulations receive Parliamentary approval.
The consultation closes on 2 October 2009 and employers who wish to take part in the consultation can do so by accessing the consultation document at www.berr.gov.uk.
The Public Interest Disclosure Act 1998 came into force on 2 July 1999 and protects employees against victimisation or dismissal if they make a protected disclosure regarding serious concerns they have about their work for example, serious fraud or breaches of health and safety regulations (known as 'blowing the whistle'). Such disclosures must be made to their employer or a prescribed person (usually the relevant regulator; for example, The Health and Safety Executive, Serious Fraud Office or Financial Services Authority).
Last year, 1700 Employment Tribunal claims involving whistleblowing allegations were made by employees.
The Government proposes that once a claim form which involves whistleblowing allegations has been accepted by the Employment Tribunal, the Tribunal will send the form (or relevant extracts from it) directly to the appropriate regulator. For example, claims involving alleged breaches of health and safety law would be sent to The Health and Safety Executive for them to investigate.
Although the employee must give their express consent to their claim form being sent to the regulator, there is no requirement that the employee's claims be successful before an Employment Tribunal forwards details to the regulator.
Therefore, employers could be put under investigation by a regulator on the basis of claims made by employees in their Employment Tribunal claim forms. However, Employment Tribunals will notify employers that the claim form has been sent to the regulator to ensure that employers are fully aware of the situation from the outset.
As information concerning the allegations in the claim form will only be sent to the regulator, the Government maintains that this will prevent unsubstantiated allegations from being put in the public domain.