Employment: "Whistle-blowing" - employment tribunal power to inform regulators
An employee is protected from suffering detriment at work or being dismissed as a result of a notification of malpractice made in good faith either to their employer or, in certain circumstances, a third party (such as a regulator or statutory body) known as a “protected disclosure”.
Where an employee is subjected to a detriment or dismissed as a result of making such a protected disclosure, he may bring a claim before an employment tribunal.
Due to a concern that such protected disclosures were not being brought to the attention of the relevant regulatory body and thus were not being investigated properly, the Government consulted on a proposal that the employment tribunal should have the ability to forward relevant information to a regulator in claims which involved whistle-blowing.
Following the consultation, it has now been announced that employment tribunals have been afforded a new power to send details of the ET1 form (the form which a claimant completes to commence his tribunal claim) or appropriate sections from it, to a regulator, provided the claimant consents.
Minor amendments following consultation
The ET1 form has been revised to include a consent box, which the claimant must tick if he wishes to “opt-in” and expressly give his consent for information to be shared with a regulator.
The form will apply to any employment claim, with an element of whistle-blowing submitted on or after 6 April 2010. It will also have revised guidance attached explaining the consequences, for the claimant, of ticking the consent box and detailing the claimant’s various options.
Where a claim is identified as having a whistle-blowing element to it and the claimant has consented, it is proposed that a centralised system will deal with the necessary administration to notify the appropriate regulator. Employment judges will not be involved in any aspect of the disclosure process.
The parties must be informed in writing in the event that the ET1 form, or extracts from it, is submitted to a regulator.
The draft regulations, the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010, are intended to amend Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to allow the requisite information to be disclosed.
The draft regulations are to be put before Parliament for consideration imminently.
Government response to consultation (which annexes the draft regulations)
For further information or to discuss the issues raised, please contact Colina Greenway (firstname.lastname@example.org) on +44 (0) 203 051 5711.