Since 1998, employees who raise concerns by making a ‘protected disclosure’ or ‘blowing the whistle’ about the possibly unlawful activities of their employer enjoy protected status. A whistleblower who believes he has been dismissed or suffered a detriment (a poor bonus or low pay rise, for example) can claim compensation in an employment tribunal.
The whistleblower does not have to prove that his employer has in fact broken the law or their regulator’s rules to secure compensation. All he has to show is that he reasonably believed this was the case. Therefore employment tribunals are only concerned with adjudicating on the individual’s employment situation. They are not obliged to pass information on to the police or any regulatory body about alleged wrongdoing – unless the whistleblower does so they often never find out about it.
In July 2009, the Department for Business, Innovation and Skills published a consultation paper proposing to effectively plug the gap between the claims being raised in the tribunals and the relevant regulator being notified of the alleged malpractice.
Parliament needs to give final approval but the proposal is that from 6 April 2010, employment tribunals can forward copies of claim forms raising allegations of malpractice in the workplace to the appropriate regulator. As the employee’s consent is needed, the tribunal claim form ET1 will be amended to include a tick box for anyone bringing a whistleblowing claim to indicate consent to the tribunal forwarding information alleging malpractice to the relevant regulator. Once the information has been forwarded by the tribunal, both parties will be notified of what, when and to whom information was sent.
So what difference will this make? There were only 1,700 whistleblowing claims in 2008. Given that employees can claim protection for complaining about breaches of their own employment contract thanks to the decision in Parkins v Sodexho in 2002, it is likely that a large number of those claims did not disclose matters of public interest. This is not to say that there are not and will not be genuine public interest issues disclosed during the course of an employment claim, but it is questionable how much difference the new tick box will really make to stamping out crime and regulatory breaches by employers.
It is also hard to see a substantive benefit to either party. Obviously this makes it easier for an employee to make a complaint to a regulatory body as well as the tribunal – they just tick the box and avoid all the rigmarole of finding out the regulator’s procedure, where to send it, filling in more forms etc. If a regulator establishes that the allegations are well founded, of course that doesn’t present the employer in a good light in the tribunal but that is not what the tribunal is concerned about. In any event, busy as tribunals are, some regulators are more so as there is no guarantee of a result before the tribunal hearing.
In fact the procedures may hinder the early resolution of claims through negotiated or mediated settlement. For many of our clients a report to a regulator means all bets are off as regards settlement. Once the regulator starts investigating it will not drop the matter simply because the parties have settled the tribunal claim. Employers always fear settlement being perceived as an admission of wrongdoing and potentially damaging to the outcome of regulatory investigation and are more inclined to continue the fight on both fronts. Commercially the cost of defending a tribunal claim may be considered worth it to put it in the best possible position with the regulator. The employee is then forced to either continue pursuing the claim, often at significant personal cost, or drop it altogether.
There is no obligation to tick the box. We suspect many claimants, particularly those who are not legally represented, will do so as the fact that it appears on the form looks like its the normal course; perhaps without thinking about the ramifications for them personally, not just the costs but the possible damage to employment prospects of being viewed as a trouble maker. Whilst employers should rightly answer to their regulator for genuine wrongdoing, some may well be faced with the administrative burden of questions and investigations by their regulator when trying to get them in difficulties with a regulator is seen as a means of revenge or a misguided attempt to force a financial settlement.
Joanna Chatterton is an employment partner and Evie Meleagros is a trainee solicitor at Fox Williams LLP. Jo and Evie can be contacted on 020 7614 2617 and 020 7614 2593 respectively or at firstname.lastname@example.org and email@example.com.