The Public Interest Disclosure Act 1998 introduced specific rights for those who disclose information about alleged wrongdoing.
To date the Employment Tribunal’s powers have been limited to determining whether a dismissal or detriment has occurred. All the tribunal is expected to assess is whether the protected disclosure was made and, where it was, if it was made in good faith. An employee can still be afforded protection under the legislation, even if the disclosure is not factually true, provided that the individual has a genuine belief in its validity.
From 6 April 2010, however, where a claimant brings a claim for suffering a detriment or having been dismissed for making a protected disclosure there will be a process for the employment tribunal to follow, forwarding the claim form to the relevant regulator so that the underlying allegation can be investigated.
Q What is the point of this change?
A It follows a consultation exercise started by the Department for Business, Innovation and Skills in summer 2009. This new measure is designed to make it easier for regulators to access whistle blowing claims and decide whether further action is necessary. As part of this process, employment tribunals will have a more active policing role.
Q How will the process work?
A The form ET1 will be revised to include a box for claimants to tick, indicating their express consent for the employment tribunal to pass on copies of the ET1 (or extracts) directly to the relevant regulator.
Q Will the Employment Tribunal automatically refer a successful claim to the regulators?
A No. Even if the claimant chooses to tick the box it will still be at the discretion of the employment tribunal as to whether the information is sent to the regulator or not. If the employment tribunal decides that the ET1 should be sent to the regulator, the parties will be told who it was sent to and when this was done. The claimant will have certain confidentiality options and can go directly to the regulator if they wish.
Q Isn’t this a lot of fuss about nothing?
A Well, the more than 1,700 individuals who brought claims last year would disagree with you. Ignore this legislation at your own risk.
Q What type of disclosures are protected?
A The legislation protects a wide range of different disclosures. These typically include health and safety malpractice, tax concerns relating to HMRC and care concerns in the context of services users regulated by the Care Quality Commission. The recent case involving Cherie Blair’s stepmother, Stephanie Booth, concerned a claim of alleged unfair dismissal for identifying failings and health and safety concerns with her employers, children’s charity Cool UK. Booth blew the whistle over staff, allegedly, purchasing adult material at the charity’s base.
Q What are the repercussions for the employer?
A Following the conclusion of tribunal proceedings and referral to the regulator, there are unlikely to be any specific legal repercussions for an employer who has not acted wrongfully in respect of the subject matter of the protected disclosure. In circumstances where an employer has been involved in malpractice and the employee has blown the whistle then clearly the employer can face severe penalties if the matter is investigated by the relevant regulator. A graphic example of the potential risks involved would arise from a referral to the Health and Safety Executive. Penalties can be extreme, including imprisonment coupled with unlimited fines. Great care needs to be exercised in such cases.
Q Any thing else I should be worried about?
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A Quite apart from these penalties, a referral to the regulator will expose the employer to an investigation which could be damaging in terms of publicity, and time-consuming. An employee may also use the threat of ticking the referral consent box as a bargaining tool to induce an employer to pay a greater settlement of any potential claim.
Catherine Wilson, partner, Thomas Eggar
