Whistleblowing - Keeping Regulators Informed

The Public Interest Disclosure Act 1998 (PIDA) – often referred to as the ‘Whistleblowing’ Act – gives workers legal protection when disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. In particular, the PIDA makes it automatically unfair dismissal to dismiss an employee for making a ‘protected disclosure’, in good faith, to someone to whom they are entitled to make it, or to penalise them for doing so.

Currently, whilst someone bringing a claim under the PIDA can make a protected disclosure to the relevant regulator, no system exists whereby the Employment Tribunal (ET) can pass on information about whistleblowing claims to regulators.

The Department for Business, Innovation and Skills is carrying out a consultation exercise on its preferred method for enabling the substance of allegations giving rise to PIDA claims before the ET to be assessed and, where appropriate, acted upon by the appropriate regulator, without unsubstantiated allegations being released into the public domain.

The proposal is that when a claim is made under the PIDA, the ET would, with the express permission of the claimant, be allowed to send a copy of the ET1 claim form, or extracts from it, directly to the relevant regulator, which would then assess the information and investigate if appropriate. The consent of the claimant would be obtained by them ticking a ‘yes’ box on the ET1 claim form. Information would not be passed to the regulator if the claimant did not wish this to happen – perhaps because he or she had already done so.

The relevant regulators for the purpose of sharing ET claim information would be those on the list of ‘prescribed persons’ under the PIDA legislation. However, whilst there are some 50 regulators on the list, a sampling exercise revealed that the majority of PIDA claims are likely to be the responsibility of a handful of these, namely local authorities, the Health and Safety Executive, the Care Quality Commission, Companies Investigation Branch, the Financial Services Authority, HM Revenue and Customs and the Serious Fraud Office. A phased implementation of the new procedure is therefore suggested, passing information to only these regulators initially.

The consultation can be found on the Department for Business Innovation & Skills website. The Government plans to introduce the changes in April 2010.