Whistleblowing Cases: Important Change

[This bulletin reproduces, with permission of the editors, the text of an update from www.emplaw.co.uk]

The Department for Business, Innovation and Skills has clarified its proposals to give employment tribunals the power to pass on whistleblowing (Public Interest Disclosure Act 1998) allegations arising during claims to a prescribed regulator.

For claims (or amended claims) arising on or after 6 April 2010, a number of changes will be put into place:

• the tribunal claim form (ET1) is to be amended so that claimants will be invited to tick a box, indicating whether their claim includes allegations of a protected disclosure and, if so, that they wish the tribunal to refer the allegations on;
  
  
• where this box is ticked and the tribunal identifies a protected disclosure, will the information be passed on to one or more relevant authorities on a prescribed list;
  
  
• the Tribunal Rules of Procedure 2004, will be amended to allow for such disclosure of otherwise privileged information;
  
  
• both parties to the tribunal proceedings will be contacted in writing by the tribunal to confirm that a relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed.

During the consultation phase, the concern was raised that empowering the employment tribunal service to forward details of claims involving PIDA allegations to the "relevant regulator" if the claimant consents, as proposed, would give whistleblowing claimants "improper bargaining power". The Employment Lawyers' Association pointed out that this could be used by claimants as "leverage to get a higher financial settlement than they would otherwise expect", in return for not pursuing a serious allegation. It could also mean that serious claims of corruption would never reach the regulator.

The government response document includes, at Annex A, draft Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010.