Response by Thompsons Solicitors – September 2009

About Thompsons

Thompsons is the most experienced trade union, employment rights and personal injury law firm with offices across the UK.

On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.

In conjunction with various trade unions we have been instrumental in bringing many cases to Employment Tribunals which contain claims under the whistle blowing provisions of the Employment Rights Act 1996.

Our response

Thompsons supports the basic intention behind these proposals. The passage of relevant information to the proper regulators is an important public aim, and one which is frequently hampered by private factors, both external and internal, to the whistleblower themselves.

However, the process being proposed neither addresses those hindrances adequately, or takes proper account of the realities of a claimant’s position upon issuing the ET1.

The achievement of public aims through individual means will be impaired since the disclosure process is a sword for one and a shield for the other. We do feel that with some modifications the process could be made to function.

We are also concerned that respondents might seek to stay a case until the regulator's involvement was ended. If that happened it would delay access to justice and potentially prejudice the claimant as memories fade, witnesses move on and documents get mislaid.

Q1 – Do you agree with the proposed process? Yes/No – if no, please explain why and describe any other better options.

No. The scheme currently has several fundamental failings which need to be addressed before it can be considered viable.

The assumptions underpinning the proposed process are flawed and we believe that unless they are addressed the scheme will fail to achieve its aim. The key assumptions are that:

• There is no need for a confidential process;
• The claimant will understand that they have made, or are making, a protected disclosure;
• That the claimant’s consent is either based on an informed assessment of the potential consequences of disclosure, or it does not need to be informed;
• The information contained within the ET1 will be adequate for the Tribunal staff to make a meaningful assessment; and
• Lodgement of the ET1 is the end of the process.

Confidentiality

The British Standards Institute (BSi), in conjunction with five of those named in Annex D of this consultation1, has produced a Publicly Available Specification entitled “Whistleblowing Arrangements Code Of Practice”. Although directed at whistleblowing in the workplace, Thompsons considers that its stated principles are relevant here as it discusses underlying best practice. In it the BSi says that the best environment is one where the whistleblower feels sufficiently safe that they can act openly2, but that “While openness is the ideal, in practice some staff will have good reason to feel anxious about identifying themselves at the outset and so a whistleblowing policy should ensure that they can also approach someone confidentially. This means that their name will not be revealed without their consent, unless required by law3.”

It also notes that it can be “counterproductive” to require the employee to identify themselves as the source of the disclosure at the outset4.

Rule 2(2)(a) of the Employment Tribunal Rules of Procedure (which is not amended by the drafted Statutory Instrument) requires the Tribunal to send a copy of the ET1 to the respondent. So long as the impetus to make a disclosure remains on the face of the ET1, and is made known to the respondent, there will be an in-built deterrent to participate in the scheme which will undermine its effectiveness.

A new claimant’s position is more complex than that of a simple employee since they are also seeking redress and/or compensation. That may require a degree of co-operation from the respondent which is outwith the Tribunal process. They will have concerns about the disclosure itself and the effect which that may have for their future.

By way of example:

• A dismissed claimant will have concerns over whether a respondent will provide a reference to a new employer, and what it might say;
• A claimant who remains employed by the respondent will be conscious of the potential for industrial issues arising from the exercise of the employment relationship and managerial prerogative;
• A claimant who lodges a ‘holding ET1’ simply to protect their position during negotiations has a direct interest in avoiding antagonism;
• Without trade union or other support a claimant will be conscious of having to use their own resources in what is generally an unequal contest; and
• Since the Employment Tribunal’s own statistics show time and again that the overwhelming majority of cases at Tribunal settle, any claimant has a similar interest in keeping that option open.

It must be remembered that if a respondent is going to react adversely to a disclosure made through the proposed process, they will do so regardless of whether a referral is actually made, or of the regulator’s assessment of it. The potential damage is therefore done at the point that the claimant ticks the box.

In Thompsons’ view the proposed process fails to adequately address those concerns by not offering confidentiality. It is important to stress that confidentiality in this context differs significantly from anonymity. Thompsons is not suggesting anonymity, but feels strongly that confidentiality must be offered to the claimant.

A better option may be to ask the claimant about disclosure in a part of the application process that does not get copied to the respondent under Rule 2(2)(a). For instance, a tear-off cover sheet could ask that question, or there could be an additional prompt online. Alternatively, if the Employment Tribunal staff identify a PIDA claim they could approach the claimant about disclosure at that point.

The Claimant’s Understanding

It has long been the case that the claimant’s case will not be hampered by the labels placed upon it, but is shaped by the facts identified within the ET1. There will be many instances where the claimant has made, or is making, a disclosure without actually understanding that that is so, or they may make a claim where the focus is not on whistleblowing but which involves it (e.g. claiming about repercussions for assisting a colleague who acted as a whistleblower).

To ask them to tick box 5.3 if they are making a whistleblowing claim assumes an understanding that might not exist.

A better option might be to empower the Employment Tribunal to approach the claimant in these circumstances. Employment Tribunal staff, trained in this process, may spot something in an ET1 which could be referred on, but which cannot be under the current proposals.

Informed Consent

The BSi code of practice mentioned above emphasises the importance of potential whistleblowers being able to access independent advice in advance of making their disclosure5. But the proposed procedure just drops this question upon the claimant without any guidance about what the aims are, or what the repercussions might be for themselves or the respondent.

What the consultation seems not to recognise is that the information in the ET1 may itself be a disclosure and a claimant needs to understand whether they will be protected by it or not (see below), or whether there might be a better way of making the disclosure that would not impact upon the myriad of goals in a Tribunal claim.

A better option would be to ensure that claimants are given advice and guidance. Indeed there should be an obligation on the Employment Tribunal Service to inform claimants of their right to take advice and ETS staff should either be trained to provide this themselves (not a role normally welcomed by the Employment Tribunal Service), or be obliged to offer the contact details for a third party organisation such as Public Concern at Work and ACAS or to advise them to speak to their trade union, if they are a member.

ET1 Content

It is Thompsons’ experience that ET1s frequently contain a less than complete recital of the facts. We are concerned that any system which restricts itself to assessing the information in ET1s automatically hampers itself. We know from Grimmer v KLM [2005] IRLR 596, EAT that an ET1 need contain no more detail than the words “unfair dismissal” to cover all types, including whistleblowing.

Terse ET1s will not further the aims of this proposal.

A better option would be to empower the Employment Tribunal to approach a regulator at any time during the case so as to enable an assessment to be made upon information arising in, for instance, further and better particulars.

Thompsons would also suggest empowering the Employment Tribunal to send copies of its own judgements to the regulators where appropriate. Employment Tribunal judgements are typically extremely detailed and recite the relevant facts and sweep up after terse pleadings.

Not the End of the Process

Most cases will involve the claimant having already made a protected disclosure, but there will be some where the case itself contains new disclosures. Later we set out concerns about protection, but it would be wrong not to account for this fact. An employment relationship has a long reach – either claimants will remain employed by the respondent, or will require a reference from them. The law recognises that adverse repercussions can happen to an employee to who stands up for what is right by granting victimisation and harassment protections in various statutes and regulations.

If a system is to be introduced with the express aim of taking issues to regulators which would not otherwise have been, then proper recognition and protection for the claimant must be provided.

Q2 – Do you agree with obtaining the express consent of the claimant? Yes/No – if no, please explain why.

No. The reliance on obtaining the claimant’s express consent will actively hinder the aims of the procedure.

There is a fundamental dissonance between the public aims of the proposed procedure, and the private aims of an individual Employment Tribunal claimant. The public aim is a constant, whereas private aims may vary during the lifetime of a Tribunal claim.

Thompsons recognises the reliance placed by many investigations upon the original complainant’s co-operation and the fact that often one cannot proceed without the other. However, we also recognise the fact that often a disclosure needs to be treated as no more than a tip-off which then prompts an investigation. Formalising the information by requiring the claimant’s express consent would undermine this.

Thompsons is alarmed to note the proposal that the Employment Tribunals Service will also “notify the respondent of the action they have taken so that the respondent is fully aware”. This goes to the core of the issue of confidentiality (discussed above) and should not happen, for the reasons already given. Further, we do not understand why this proposal is made since it is not actually covered by question 2. We urge BIS to drop it.

Thompsons is also concerned by the restrictive nature taken by some employers which may hinder a claimant co-operating with this scheme. Two main examples are commonly seen. The first is a whistleblowing procedure which requires an employee to exhaust the internal procedures before going external. The adverse effects of this are recognised in the BSi code of practice6.

The second relates to compromise agreements which might have been executed in respect of an earlier (possibly unconnected) claim, or to settle a part of a claim prior to going to tribunal. Although s.43J Employment Rights Act 1996 voids any contractual attempt to prevent a protected disclosure, this is not known to the average claimant who will take what a legal document says as being definitive.

Some employers take advantage of that fact and seek to silence employees and ex-employees. The following example is taken from a recent draft compromise agreement from Stockton on Tees Borough Council (our emphasis):

“The parties agree and undertake (in consideration of their mutual promises to that effect) that neither will … make or publish any derogatory or disparaging statement or do anything in relation to the other … which is intended to or which might be expected to damage or lower their respective reputations including for the avoidance of doubt voluntarily or actively encouraging or supporting any other employee to make or pursue a workplace dispute, complaint or grievance.”

As a protected disclosure inevitably places a respondent in a potentially adverse light, compromise agreement clauses such as this one may prompt a claimant to withhold consent to a regulator’s involvement when it would otherwise be given. Whilst accepting that there will be few occasions where a claim is presented after a compromise agreement is signed, we nevertheless repeat our observations about the benefit of facilitating access to advice in this regard.

Finally, the current wording of box 5.3 does not actually ask for consent, it asks for instructions. We do not consider this merely semantic as there is a subtle but important difference in emphasis between a judicial body saying “we would like the option of involving a regulator, will you let us?” and “do you want us to pass it on?”

Q3 – Are you content with the Statutory Instrument as drafted? Yes/No – if no, please explain why and detail the amendments you would wish to see.

No.

For the reasons identified above and below we feel that the SI should be amended to:

• Allow for a referral without the claimant’s consent;
• Allow for a confidential disclosure by the claimant, if consent is deemed desirable;
• Allow for the referral of the claimant to a source of independent advice prior to giving consent;
• Allow for the claimant’s consent to be given other than on the face of the ET1;
• Allow Employment Tribunal staff to refer any information that they think relevant, e.g. that contained in further and better particulars or judgements at any point;
• Make the Employment Tribunal a prescribed person;
• Allow for the claimant to be told when a referral to a regulator is actually made.

We are concerned that Schedule 1A, as the explanatory note describes it, only “broadly reflects” the list of prescribed persons listed in the relevant Order7, and excludes the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection. Whilst we are aware that these bodies were subsumed into the Healthcare Commission by the Health and Social Care Act 2008, the Healthcare Commission is not included in this draft SI. There is no justification for this and the creation of a possible absence of protection is not acceptable.

We would suggest that this is an opportunity to close that loop hole, and is a convenient time to amend the relevant Order to reflect that change.

As we said earlier, Thompsons considers that it is imperative for the draft SI to clearly state whether a disclosure made to the Employment Tribunal in these circumstances, for possible onward transmission to the regulator, itself attracts the protections afforded by Part IVA of the Employment Rights Act 1996. Our interpretation is that under the current legislative regime it does not. It is unacceptable to have a system which provides protection for direct referrals, but does not for indirect ones, especially when the disclosure to the Tribunal may itself attract retribution (see above).

If that situation is left unaddressed claimants will be forced to try and argue ways around it and a parallel can be drawn with the sorts of arguments used to try and show a proper grievance was issued under the statutory grievance procedure.

Agency status was one such argument but we consider it highly unlikely that the Employment Tribunal will wish to open itself to a relationship of agent and principal in this process8.

Thompsons believes that in order to provide proper protection to a claimant protection must be expressly afforded under the SI that where the disclosure is made, regardless of whether it is subsequently passed onto the regulator (or indeed the correct regulator were the Tribunal’s identification of same be mistaken). The simplest way of achieving this is to make the Employment Tribunal a ‘Prescribed Person’ within the meaning of the Order. If protection is not provided by the system then it is even more important that a claimant’s consent is fully informed prior to it being given.

Thompsons also considers that the SI should specifically address referrals made through the Employment Tribunal in light of the ‘good faith’ requirement in the Employment Rights Act 1996. Whilst a claimant may innocently be responding to a prompt by the Employment Tribunal’s form, it will be open to the respondent to muddy the waters considerably by arguing that the box was ticked out of malice, or as a means of applying pressure upon the respondent to make concessions in the case. That could result in avoidable and time-consuming satellite litigation which might be beyond the resources and ability of many claimants.

Following on from this, the claimant needs to know whether a disclosure to the regulator was indeed made so that they can assess whether they have acquired the protections of the PIDA provisions.

Q4 – Do you agree with a phased implementation? Yes/No – if no, please give your reasons.

No.

Thompsons anticipates that the number of occasions where an ET1 is likely to disclose something worth passing to a regulator will be very low. Whereas immediately operating the full list of regulators is unlikely to represent much of an additional burden, it is likely to assist in assessing the scheme’s effectiveness. Further, there is unlikely to be any savings to be made in terms of staff training.

In the absence of any indication within the consultation document about the nature and duration of the phasing we cannot comment further.

Q5 - Do you have any further comments on what is proposed? Yes/No – if yes, please detail below.

Thompsons is concerned that the weaknesses identified above are widespread and obvious and yet do not appear to have been anticipated by the consultation. Since it seems unlikely that the consultees in Annex D of the consultation did not flag most, if not all, of them we are concerned that these proposals are an exercise in form not substance.

If that is right then these measures will fail to elicit more than a fraction of the number of possible disclosures, and could fail to adequately protect those participating in the scheme.

1 The TUC, Public Concern at Work, CBI, the Institute of Directors and the Information Commissioner
2 Paragraph 3.5.2
3 Paragraph 3.5.3
4 Paragraph 4.4.2
5 Paragraphs 3.7 and 4.5
6 Paragraph 4.7
7 Public Interest Disclosure (Prescribed Persons) Order 1999 (SI 1999/1549)
8 This view is based, in part, on a similar argument that failed under the statutory grievance procedure when the claimant attempted to argue that they had validly ‘sent’ a grievance to the respondent through the agency of the Employment Tribunal by setting out a complaint in an ET1 knowing that it would be passed to the respondent by the Employment Tribunal under Rule 2(2)(a) (Gibbs t/a Jarlands Financial Services v Harris [2007] All ER (D) 449 (Mar), EAT at paragraph 17). A similar argument involving a complaint on an application for social security benefit that was passed on to the respondent also failed in Whitlock v Right Move UKEAT/0407/06. Interestingly the current wording of box 5.3 does imply an agency relationship, which could be misleading since a claimant may think they have instructed the Tribunal to pass on the information, but the Tribunal has chosen not, which is not a true agency relationship.