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Change to UK Whistleblowing Regime: Tribunals to Have Power to Alert Regulator

United Kingdom
19.01.10
2
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
This article discusses the proposed changes to the UK Whistleblowing Regime and its implications

Under draft legislation due to come into effect on 6 April 2010, claimants to UK employment tribunals will be able to tick a box on their claim form indicating whether their claim involves allegations of a protected disclosure and, if so, whether they wish the tribunal to pass on such allegations to the relevant regulatory body.  If the tribunal accepts the claim and considers it appropriate to do so, it may send a copy of the claim, or part of it, to one or more regulators set out in a prescribed list. The tribunal would then write to the claimant and respondent to confirm that a copy of the claim form, or extracts from it, has been disclosed.

The Department for Business, Innovation and Skills (BIS) has published a response document following consultation on employment tribunal claims and the Public Interest Disclosure Act 1998 (PIDA).  The Government wanted to explore whether there was a practical way of allowing the substance of allegations giving rise to claims under the PIDA to be forwarded to the relevant regulator so that the allegations of the underlying issues could be investigated by the regulator and appropriate action, if any, taken in accordance with its own practices and procedures.

Only those claims accepted by the employment tribunals where PIDA is identified as a jurisdiction (by the claimant ticking the relevant box and the tribunal identifying the protected disclosure) would be subject to this process.

BIS has issued draft Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010 (annexed to the response document) which will be laid before Parliament shortly and are intended to come into effect on 6 April 2010. A list of regulators to whom disclosure may be made by the tribunal is included in the draft Regulations.

Implications

Concerns were raised in the course of consultation that allowing details of PIDA claims to be passed on to the relevant regulator would lead to additional litigation and that the claimant would have additional and improper bargaining power. The Government has countered this suggestion by pointing out that this situation can already arise where the claimant sends information directly to the regulator.  However, it did accept that regulators were likely to receive more referrals once this process is in place.  The Government did not consider that concerns that spurious allegations might be forwarded to the regulator were significant. However, this will surely be an issue for employers who may now have to face the additional administrative burden of dealing with a tribunal claim alongside a regulatory investigation.

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