IMPORTANT: This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice. Release Date: 25 January 2010

Briefings

The Government has confirmed that employment tribunals will be given power to pass on details of whistleblowing claims to relevant regulators. This power will apply to all such claims submitted on or after 6 April 2010, provided that the claimant has indicated his or her consent on the claim form (the ET1).

A whistleblowing claim arises where a worker alleges that he or she has been dismissed or suffered some other detriment as a result of making a disclosure, in good faith, about wrongdoing in the workplace (a protected disclosure). Often, the alleged wrongdoing relates to matters such as financial irregularities, health and safety breaches and tax evasion, but can relate to a range of unlawful acts and breaches. The tribunal will ascertain which regulator is the relevant regulator (for example the FSA, the Health and Safety Executive or HM Revenue & Customs) and pass on the ET1 or parts of it to that regulator for investigation. The aim of the new power is to enable more instances of unlawful behaviour to be investigated by regulators with the necessary knowledge and expertise. The employment tribunals themselves are only concerned with the employment rights arising out of having made a protected disclosure, not with the substance of the allegations.

It remains to be seen whether claimants will use this as a bargaining tool against employers reluctant to have their affairs scrutinised – it will certainly be easier to tick a box on the ET1 than reporting the matter directly to the regulator (an option that is already open to employees). On the other hand, employers may also be able to take advantage of the new process – although the Government states that tribunals will not be influenced by whether or not the claimant has ticked the box, it may nevertheless be possible for employers to argue that a lack of consent is a sign of the employee's lack of good faith. And for an employee whose regulated status is a pre-condition of future employment, making false allegations could lead to issues with maintaining that regulated status. In short, this change raises the stakes for employees and employers involved in whistleblowing claims.