Public interest disclosure and tribunal claims

1 February 2010

At present, if a claim includes allegations of public interest disclosure (“whistleblowing”), the Employment Tribunal considers the matter purely in the context of the employment claim. It takes no direct action in respect of the “protected” disclosure raised by the whistleblower. If the employee, or indeed anyone else, wants the issues to be investigated by the appropriate regulator, it is for them to make a separate referral to the relevant regulatory body.

Under proposed amendments to the Employment Tribunal rules of procedure, scheduled to take effect from 6 April 2010, Employment Tribunals will be able to forward information relating to whistleblowing claims to the appropriate regulator identified in a list.

The ET1 will include an additional tick box for the claimant to authorise the Employment Tribunal to forward the ET1, or relevant extracts from it, to the appropriate regulator. Guidance will be provided to claimants as to the consequences of doing so. Claimants may still decide not to make a referral.

If the claimant gives his consent, the Tribunal Secretary will take the decision as to whether the information ought to be forwarded to the regulator. If so, both parties will be informed in writing. This will be done at the time of acceptance of the ET1.

It is unclear whether this procedure will have a material impact on the number of whistleblowing claims made. Employers may be intimidated by the prospect of a claim, however flimsy, being referred to their regulator prompting early and disproportionately expensive settlement. Conversely, a whistleblower who is, himself, subject to professional regulation may be more guarded against raising concerns rashly. Some comfort may be taken from the fact that the Tribunal will only forward such claims as it decides it has jurisdiction to hear and the regulator will also determine, separately, whether the claim merits investigation.

In any event, it makes it more vital than ever that employers both have a whistleblowing policy and appreciate that “protected” disclosures can be raised in any context but still attract the protection of the Tribunal.