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Regulators to get details of ‘whistleblowing’ claims

07 April 2010

From 6 April 2010 the employment tribunal will be able to send details of cases involving whistleblowing allegations to relevant regulators such as the HMRC.

Background

Employees and workers who make a protected disclosure – otherwise known as whistleblowing – are protected against detriment and dismissal.

Broadly, a protected disclosure is a disclosure of information (usually made to the employer) relating to: a criminal offence, a risk to health and safety, a failure to comply with a legal obligation, a miscarriage of justice, environmental damage or concealment of any of these.

Where an employee is claiming that they were dismissed because they made a protected disclosure they do not need to have 12 months service in order to bring an unfair dismissal claim and any compensation awarded to them is not subject to the usual cap (currently £65,300).

From 6 April 2010

A new ET1 form gives workers the option to consent to employment tribunals forwarding details of the whistleblowing element of their claim to a ‘relevant regulator’. 

The legislation lists the numerous regulators who may receive such details. The best known of these include the:

Where a claimant has consented to information being provided to a regulator, the Tribunals Service will write to both the claimant and respondent to confirm when an ET1 or extracts from it has been sent and to whom.

It is important to note that once the information is passed to the relevant regulator the link with the original tribunal litigation will be broken: it will be for the regulator to decide what, if any action, to take in respect of the details sent to it.

Any investigation undertaken will be entirely independent from the outcome of the underlying tribunal case. It will not make any difference if ultimately the whistleblowing claim fails, a regulator will be entitled to continue to investigate the facts behind the original allegations.

Comment

This is a potentially worrying development for employers who may find themselves having to dedicate resources to dealing with an investigation by regulators on the basis of a spurious claim by an employee.

Concern has been expressed that this will give individuals improper bargaining power over employers prior to submitting an employment tribunal claim as employers may have an incentive to settle before information is given to a regulator.

The Government dismissed these worries during the consultation process given what it said were the small number of whistleblowing claims brought each year.

As with any new employment development, employers and their lawyers will be waiting nervously to see whether their fears are well founded in practice.

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