More powers to Tribunals for Whistleblowers

The Department for Business, Innovation and Skills has clarified its proposals to give Employment Tribunals the power to pass on whistleblowing (Public Interest Disclosure Act 1998) allegations arising during claims to a prescribed regulator.

According to the proposals the tribunal claim form (ET1) is to be amended so that claimants will be invited to tick a box, indicating whether their claim includes allegations of a protected disclosure and, if so, that they wish the tribunal to refer the allegations on. Where this box is ticked and the tribunal identifies a protected disclosure, will the information be passed on to one or more relevant authorities on a prescribed list. The Tribunal Rules of Procedure 2004, will be amended to allow for such disclosure of otherwise privileged information and both parties to the tribunal proceedings will be contacted in writing by the tribunal to confirm that a relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed.

However, this proposal poses a number of problems. Firstly, it has been my experience to date that whilst employees are aware of facts involving their employers which are of concern, they may not be aware that these facts constitute a ‘protected disclosure’ and so, may not elect to tick the box. Alternatively, we could see the complete opposite where employees simply use this as an opportunity to list various ‘misdemeanours’ of their employers' in the hope that one of them qualifies as a protected disclosure.  There is also clearly scope for employees to use the threat of "ticking the box" as a bargaining point in order to persuade their employer to settle the potential claim.

So, whilst there is some benefit in allowing tribunals to take appropriate action where employers are conducting their business in an inappropriate manner there is also the possibility that employees will use such information as a way of getting bigger pay-outs from their employers, which in turn means that employers can carry on running their business improperly.

Could it be that the proposal needs to go a few steps further in, giving a list within the form of what types of conduct would be covered and also empowering tribunals to report matters of concern to a Regulator regardless of whether a case settles or not?  Or should the report be made only at the point at which there is a finding by the tribunal that a protected disclosure has been made?

I would be very interested to hear views from both sides of this argument!