Employment Tribunals Regulation
Standing Committee on Delegated Legislation
Thursday October 28
Briefing of 26 Oct from Public Concern at Work on the Prayer by Richard Shepherd MP
Public Concern at Work is grateful that the Committee will be considering the background to and consequences of regulation 17, which removes from the public record all information about applications made to an employment tribunal. Whatever reasons have influenced the Government’s thinking, this regulation is not some minor administrative detail as its effect is to undermine our system of open justice and adversely affect the public interest.
The implications are particularly serious for the Public Interest Disclosure Act (PIDA) which Mr Shepherd introduced. We believe its purposes and operation will be thwarted if this departure from our system of open justice applies to information under PIDA. It is common ground that the implications for PIDA are an important and distinct issue as when the DTI announced the abolition of the register of applications in July, it stated at paragraph 53: “The Government will however give separate consideration to the contention by Public Concern at Work (PCaW) that claim and response information on public interest disclosure cases should be treated exceptionally”.
We understand that the Government is now intending to apply regulation 17 to PIDA claims as it stands. We ask the Committee to urge the Minister to reconsider his position and to recognise that the advice he has received from officials - that the risks are so great that all information about pending whistleblowing cases should be kept under wraps - is erroneous.
Public Concern at Work is particularly concerned that this secrecy will damage the public interest, cover up frauds and encourage blackmail. The charity has turned down a proposal that it would receive the applications and responses in all whistleblowing cases provided it kept the information out of the public domain and only - at its own risk - passed it in secret to government bodies. We have told the minister we are happy to help take the administrative burden if that is the issue and are interested in operating a public register that gives a balanced picture of every whistleblowing case and helps people understand how the legislation is working.
Ministerial statements
Enterprise Minister Nigel Griffiths MP told the Commons this February that “it is in everyone's interest to ensure that there is as much public disclosure as is practical and that this type of legislation is as effective as possible.” Employment Minister Gerry Sutcliffe MP recently assured MPs that “the DTI has no objection to whistleblowing claims being made public.” When the issue of public access to all employment claims (and not just whistleblowing ones) first arose, Lord Sainsbury wrote that the Government would “negotiate a careful path between the public interest in access to claims and the need to safeguard individual privacy”. Employment minister Gerry Sutcliffe MP has written to MPs this month accepting that whistleblowing claims under the Public Interest Disclosure Act (PIDA) “raise unique public interest issues”.
In the February adjournment debate Dr Tony Wright MP (who cannot be on the Committee as he is with the PAC in Paris) told ministers that “The issue is whether there is a public interest in the public knowing what claims under the Public Interest Disclosure Act are about. We have only to ask that question to know the answer”. In that debate the former law officer Ross Cranston QC MP urged ministers to recognise that it is a fundamental part of our system of justice that cases are not shrouded in secrecy.
We are also concerned that it will be impossible for Parliament to monitor how the Public Interest Disclosure Act is working if information about all the claims that are settled is to be kept secret.
Key issues
Q Which organisations have called for whistleblowing claims to be secret?
A None. In fact the CBI, the TUC and the IoD have said they have no objection to whistleblowing claims being on the public record.
Q Is the DTI right that publishing claims will lead to ambulance chasing?
A No, provided the private addresses of the parties are excluded.
Q Is the DTI right that publishing claims will lead to unbalanced reporting?
A Not if the claim is only made available with the response or on resolution of the case.
Q Is the DTI right that there has never been a public right to whistleblowing claims?
A No. The High Court ruled there was such a right in 2000 and Public Concern at Work was then supplied over 400 whistleblowing claims.
A On the contrary, it is an important part of the framework for the Act. When PIDA was passed, ministers said it would “put in the public domain things that would otherwise remain secret”.
We hope you will be willing to support these points and urge the Minister to ensure that whistleblowing claims are on the public record.
Should you have any questions, please ring the writer,
Guy Dehn, 020 7404 6609.