19 March 2019 - Article
From today, anyone who brings a whistleblowing complaint to an employment tribunal will be asked to tick an additional box on the claim form. The box will indicate whether or not the individual consents to details of the whistleblowing claim being passed to the relevant regulator.
If a whistleblowing claimant gives consent by ticking the designated box on the claim form (ET1), the tribunal will be authorised to pass the ET1 (or extracts from it) to the appropriate regulator. In theory this will enable the regulator to investigate the alleged malpractice.
A number of concerns have arisen about the new measure, including the prospect that the option to tick the ‘yes’ box may be used by claimants to put pressure on their employers in pre-claim settlement negotiations.
The Explanatory Memorandum to the regulations indicates that the new procedure will enable the whistleblowing allegation to be assessed by tribunal administrative staff and, where appropriate, acted upon ‘without involving the release of unsubstantiated allegations into the public domain’. But whilst there is provision for the redaction of forms where there are issues of national security or sexual misconduct, or general data protection concerns, there does not appear to be provision for redacting forms that contain sensitive commercial information.
Other concerns include the relationship between a regulator’s investigation and attempts to settle claims, difficulties in indentifying the relevant regulator and the potential for satellite litigation.
It remains to be seen how much impact the measure will have in practice, the extent to which claimants make use of it and hence whether some of the concerns about these unintended consequences prove accurate.