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Whistleblowing: Tribunals new powers to notify regulators

31st January 2010

The Government has confirmed that with the consent of a claimant in the Employment Tribunal the Tribunal can pass details of allegations of wrongdoing, and relevant information, to the prescribed regulator. The Public Interest Disclosure Act 1998 is the legislation that gives employees certain legal protection in the event of them whistleblowing about illegal activity committed by or for their employer. Examples would include failing to pay the correct taxes, and breaches of Health and Safety obligations.

From the 6th April 2010 a claimant (usually a former employee at that point) can tick a box on the Tribunal Claim Form indicating whether their claim includes allegations of protected disclosure (whistleblowing) and if so, if they want the Tribunal to refer the allegation on to the relevant regulator. Guidance with the new form will also explain that the claimant can contact the regulator directly if he or she prefers, for example if there is are reasons of confidentiality. The form will also provide details of links to guidance provided by Business Link and the Government’s information site- Directgov.

The purpose of this change is to avoid the argument that the claimant did not want the information being forwarded to the regulator. This is clearly an argument that could result in doubt over the purposes, aims, and motive behind the claimant’s allegations about the employer’s conduct.

The decision whether or not to forward the details of the allegation to the regulator is at the discretion of the Tribunal Secretary. However, it is obvious that if this change is to have any relevance or impact there will have to be sufficient referrals made by the Tribunal Secretary to satisfy public support.

If the Tribunal Secretary makes a notification, he will inform both the claimant and the employer that a relevant authority has been notified of the alleged wrongdoing. Naturally for this to have any practical effect it will include the disclosure of confidential information.

Some concern has been raised that this change will give a claimant improper bargaining power, and enable them to push for a higher financial settlement than they might otherwise expect (or deserve), in return for not pursuing a serious allegation. In addition, the concern over the possibility that this may in turn lead to serious claims of corruption failing to reach the regulator has been raised. We do not deny that there is such a risk. However, the moral is clear, that employers need to ensure that they do not act in a way that may lead to a whistleblowing claim in the first place. This means that there should be a greater scrutiny of the conduct and decisions of their managers, and that they ensure that a culture of openness is fostered at all levels of the business. Employers should introduce guidelines or a policy addressing the issue of whistleblowing, indicating how, when, and to whom such allegations should be made and considered.

If you need any further advice and help on the issues raised in this article please do not hesitate to contact us.

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