New rules for whistleblowers will do no good
JOANNA CHATTERTON
EMPLOYMENT PARTNER, FOX WILLIAMS LLP
SINCE 1998, employees who raise concerns about possibly unlawful activities by their employer have enjoyed protected status. Employment tribunals have not been obliged to pass information on to the police or any regulatory body about alleged wrongdoing. Unless the whistleblower does so, they often never know about it. But all this could be about to change.
If parliament gives final approval, from 6 April 2010, employment tribunals will be able to forward copies of claim forms that raise allegations of malpractice in the workplace to the appropriate regulator. The employee’s consent will be needed, and so the tribunal claim form will include a new box. If the employee ticks that box, then the tribunal can forward information alleging malpractice to the relevant regulator.
So what good will this do? Not a lot. In a large number of cases, employees are just complaining about breaches of their own employment contract, thanks to the decision in Parkins v Sodexho in 2002. Cases of genuine public interest are likely to be in the minority, so it is questionable how much difference the new tick box will really make to stamping out crime and regulatory breaches by employers.
It is also hard to see a substantive benefit to either party in the new system. Obviously, it makes it easier for an employee to make a complaint to a regulatory body as well as the tribunal – they just tick the box and avoid all the rigmarole of finding out the regulator’s procedure, where to send it, filling in more forms and so on.
In fact, passing information of an employer’s possible wrongdoing to the regulator may actually hinder negotiated or mediated settlements. Employers always fear that settling a case is perceived as an admission of wrongdoing, and that it is potentially damaging to the outcome of regulatory investigation. And once a regulator has started investigating a case, it will not drop it when the parties have settled the tribunal claim.
An employer is more inclined to continue the fight on both fronts. It might decide that the cost of defending a tribunal claim is a price worth paying. Giving up might be perceived as implying guilt. The employee is forced to either continue pursuing the claim, often at significant personal cost, or drop it altogether.
That said, there is no obligation to tick the box. We suspect many claimants will do so without thinking about the ramifications for them personally – not only the costs of pursuing the claim, but the possible damage to employment prospects of being viewed as a troublemaker. Employers should rightly answer to their regulator for genuine wrongdoing.
But under the proposed new system, some may well be faced with the administrative burden of questions and investigations from the regulator because a disgruntled former employee sees that getting an employer into trouble with the regulator could be a form of revenge, or a misguided attempt to force a financial settlement.