Whistle-blowing Worries
Proposed Government changes could soon lead to protected disclosures being passed from Tribunal hearings to Regulatory bodies.
mhl support's Brendan Wincott gives us an insight to how these changes could affect employers.
At present, an employee who makes a protected disclosure (or 'blows the whistle' as it is commonly referred to), is able to make a complaint to an employment tribunal if they are dismissed or subjected to any other detriment in consequence of such a disclosure. Currently, the employment tribunal would merely hear the complaint, and assess whether a dismissal or detriment has occurred in consequence of the protected disclosure.
However, the employment tribunal is not expected to assess if the protected disclosure made was true or not. They simply assess if the disclosure was made and where it was, if this was made in good faith. An employee can still be afforded protection under the whistle blowing legislation even if the disclosure is not factually true, provided that the individual had a genuine belief in its validity.
However, this process is set to change, and Brendan Wincott, mhl’s Compliance Officer tells us “the Government are currently in the concluding parts of finalising their consultation over plans to allow claimants to elect to have the details of their protected disclosures forwarded onto an appropriate regulatory body when making a claim to the employment tribunal”.
Referencing the Department for Business Innovation and Skills consultation paper dated January 2010, Brendan further comments that “under these proposed alterations, the employment tribunal claim form will be altered slightly to include a box that claimants can tick if they wish for the details of their protected disclosure to be passed to the relevant regulatory body. Upon receipt of this, regulatory bodies will surely investigate such concerns.”
Protected disclosures can cover a number of different disclosures, typically including health and safety malpractice, tax concerns relating to HMRC, care concerns in the context of care towards service users regulated by the Care Quality Commission plus many more.
Whilst there is unlikely to be any legal repercussions for an employer who has not acted wrongfully in respect of the subject matter for the protected disclosure, Brendan advises that “employers should still be cautious in view of these new proposed processes as investigations by a regulatory body as a result of a claim by an employee could still prove to be adverse and damaging in publicity and time consuming for an employer. Furthermore, employees may also begin to use the threat of ticking the box for consent for a disclosure as a bargaining tool to induce an employer to pay a greater settlement of any potential claim”.
Brendan adds “obviously employers who have participated in a malpractice which the employee has blown the whistle about can face severe penalties if the matter is then investigated by a relevant regulatory body. With some health and safety cases consequences can be as extreme as imprisonment coupled with unlimited fines. In view of this, employers would be well advised to exercise caution in these types of cases”.
mhl has a team of specialist and experienced advisers who are able to tell you more about the proposed changes and to assist you with any protected disclosure cases. If you are an existing client, please call one of the team today on 08453 100 999 quoting your PCN number. If you are not already a client, but are interested in learning more about these changes, or the services mhl provide, please call Katy Vaughan on 08453 100 600.
