Government paves way for whistle-blowing allegations in employment cases to be referred to regulators

Employment tribunals will be able to refer whistle-blowing allegations to an appropriate regulator from 6 April 2010 as long as they have the express consent of the claimant, the government has said.

Publishing its response to a consultation on ET claims and the Public Interest Disclosure Act 1998, the Department for Business, Innovation and Skills highlighted the fact that tribunals do not make any assessment or take any action on the issue of the underlying allegation – they just look at the employment claim and make a judgement according to the facts of the case.

The allegations could, however, relate to serious fraud, health and safety issues, financial irregularities, care home standards and the like. The government said that tribunals are “not best placed to [assess these issues] as their expertise and knowledge is about employment rights”, while the relevant regulator would have the necessary insight.

The consultation was launched in a bid to establish a practical process where the substance of allegations giving rise to PIDA claims could be forwarded to the regulator so that they could then be investigated. The regulator could then take further action, if appropriate.

Under the proposed process, tribunals will be allowed to send copies of the ET1 claim form or extracts from it directly to the relevant regulator or regulators (which must be on a prescribed list of organisations) where there is express consent from the claimant. Only those claims accepted by the tribunal where PIDA is identified as a jurisdiction would be subject to this process.

“This process imposes no additional burden or delay on either the claimant or respondent in dealing with the employment tribunal claim and only minimal additional administrative burden for the Tribunals Service,” the government insisted. “Nor will it involve any unsubstantiated allegations being put in the public domain by the employment tribunal, with any information only being shared by the Tribunals Service with the relevant regulator.”

The guidance which accompanies the ET1 claim form will make clear what happens if a claimant with an accepted PIDA claim ticks the consent box (requesting a referral) and will explain that they can instead go to the regulator direct themselves, for example for reasons of confidentiality.

The rules of procedure governing tribunals will need to be amended by secondary legislation to allow disclosure of otherwise privileged information. Further guidance on the process will also be published in due course.

DBIS said it would explore whether it is possible for the Tribunals Service to deal with all accepted PIDA claims from the outset, rather than through a phased implementation of the new regime. In 2009, employment tribunals received 1,700 claims involving PIDA allegations.

Simon Tytherleigh, employment partner at Eversheds, said the proposals have been controversial, but the government has pointed out that the right of a claimant to report alleged protected disclosures under the Act are unaffected.

“To do nothing, would [in the government’s] view allow potentially serious allegations emerging in the context of a tribunal claim, to pass without further investigation or penalty,” he added.

Tytherleigh said it was more important than ever for employers to conduct proper disciplinary and grievance hearings and have a policy to address legitimate employee concerns. “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.”