The Government has confirmed that it is pressing ahead with proposals to send whistleblowing Tribunal Claim Forms to the appropriate regulator. All whistleblowing Claim Forms received by an Employment Tribunal on or after 6th April 2010 will be subject to the new system (even if the events relied upon by the Claimant occur before this date).
Employers need to be aware that after the 6th April 2010 any whistleblowing claims sent to the Employment Tribunal by an employee or former employee could result in an investigation of their company or organisation by a regulatory body.
Concerns were raised during the Government's consultation that this would give 'improper bargaining power' to Claimants. This was dismissed by the Government who noted that Claimants can themselves already send information about their claim directly to a regulator.
However the Government acknowledges that the new system may in practice result in more cases being referred to the regulators. Therefore it remains to be seen whether Claimants use the knowledge that a whistleblowing Tribunal claim will automatically trigger a referral to the regulator as 'leverage' in negotiating financial settlements.
The Public Interest Disclosure Act (PIDA) 1998 came into force on the 2nd July 1999 and protects employees against victimisation or dismissal if they make a protected disclosure regarding serious concerns they have about their work (known as 'blowing the whistle'). Examples would be making allegations of serious fraud or breaches of health and safety regulations. 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 July the Government consulted on proposals that would allow Employment Tribunals to pass on any whistleblowing allegations raised in Claim Forms to the relevant regulator (See Howes Percival Newsflash 6th July 2009).
The Government has now published its response to that consultation which confirms that regulations will shortly be put before Parliament to implement their proposals, and that this will come into effect on the 6th April 2010.
Following responses received by the Government it proposes the following:-
- New guidance to accompany the ET1 Claim Form will explain what happens if a Claimant with a whistleblowing claim ticks the consent box and confirms that Claimants can go direct to the regulator if they prefer.
- The Claim Form will contain new wording asking Claimants whether they wish a copy of their Claim Form to be forwarded to a relevant regulator. If the Claimant agrees they will need to tick a 'yes' box on the ET1 Claim Form. If the 'yes' box is not ticked by the Claimant, the Employment Tribunal will not send the Claim Form to the regulator.
- Where a Claimant has given their express consent to their Claim Form (or information from it) being sent to a regulator, the Tribunal Service will write to both the Claimant and the Respondent to confirm when and to whom the Employment Tribunal Claim Form (or information from it) have been sent.
- In 'sensitive' cases, for example, those involving national security or allegations of sexual misconduct, only extracts or information from the ET1 Claim Form will be sent to the regulator, rather than the entire form.