Tribunals to blow the whistle from April

Friday, January 15, 2010

The Government has clarified its proposals to enable employment tribunals to pass on whistle-blowing allegations, raised in ET1 claim forms, to the relevant regulatory authorities. New powers are to be introduced from 6 April 2010.

Background

The Public Interest Disclosure Act 1998, introduced protection from dismissal for employees who disclose improper or criminal activities on the part of their employer. However, at present, no such allegations raised in the context of an employment tribunal claim are reported to the appropriate investigating authorities (such as the Serious Fraud Office, Health & Safety Executive or Financial Service Authority) unless the individual decides to contact the authority directly. Even where allegations heard by the tribunal involve potentially serious fraud, health and safety breaches or financial irregularities, tribunals are unable to pass them on. It is, in any event, beyond the jurisdiction of the tribunal to determine the legitimacy of such allegations, its duties ending with what the employee believed to be the case and the consequential employment implications.

The new tribunal powers

For claims (or amended claims) arising on or after 6 April, a number of changes will enable tribunals to refer protected disclosure allegations (otherwise known as whistle-blowing claims) to the relevant regulatory authorities:

• The tribunal claim form (ET1) is to be amended so that claimants will be invited to tick a box, indicating whether their claim includes allegations of a protected disclosure and, if so, that they wish the tribunal to refer the allegations on
• Only in cases where this box is ticked and the tribunal identifies a protected disclosure, will the information be passed on to one or more relevant authorities on a prescribed list (referred to as "prescribed persons")
• The Tribunal Rules of Procedure, 2004, will be amended to allow for such disclosure of otherwise privileged information
• Both parties to the tribunal proceedings will be contacted in writing by the tribunal, to confirm that a relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed
• Detailed guidance upon the process and its implications will be made available in due course.

Comment

For many, the proposals, which were first set out fully in a consultation document in July 2009, are controversial. The Government has been at pains to point out, however, that the rights of a claimant to report alleged protected disclosures under the Public Interest Disclosure Act 1998 are unaffected. At most, the Government believes, the new provisions will serve to highlight a claimant's ability to do so. To do nothing, on the other hand, would in its view allow potentially serious allegations emerging in the context of a tribunal claim, to pass without further investigation or penalty.

A particular concern for many respondents to the Consultation, was that the changes may result in delays to the tribunal process, while a decision is taken whether or not to refer an allegation on. However, the Government is persuaded that very few cases will be affected and this is a purely administrative exercise: just as now, it will not be for tribunals to take a view on the merits or otherwise of an allegation, nor what should follow. Even so, the Statutory Instrument which will effect these changes (the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010) does place considerable onus on the tribunal's administrative staff to identify a protected disclosure and then, take a view on whether it is appropriate to refer the allegation to a relevant authority. This is not a decision intended for Employment Judges and yet the question of what may or not be an issue of public interest for disclosure purposes, is not necessarily clear cut, as case law has demonstrated.

That employers conduct proper disciplinary and grievance hearings is clearly important on many practical and legal levels. Having a policy to address legitimate employee concerns within their organisation has also become of increasing importance. This change to tribunal procedure makes such steps more important than ever if employers are to properly address allegations of impropriety and avoid learning of such allegations only once they have escalated to a formal investigation.