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The law has long struggled to adapt to new forms of employment – who should be responsible for the protection of workers’ rights, from minimum wage and working time to discrimination law, in today’s fragmented economy? These fundamental questions are now returning to public discussion as a result of the meteoric rise of so-called "crowd-work".
“Why didn’t anyone in the know say something about it?” That’s the natural reaction of the public when some shocking new scandal – financial wrongdoing, patient neglect, child abuse – comes to light. The question highlights the role of the whistleblower. He or she can play a vital role in ensuring that something is done about activity which is illegal or dangerous. But the price which the whistleblower pays may be high – ostracism by colleagues, victimisation by the employer, dismissal, informal blacklisting by other employers who fear taking on a “troublemaker”.
It is crucial that the public interest in encouraging the genuine whistleblower is fostered. The law can play an important role in promoting this aim. It ought to further the following objectives:
to provide protection for the whistleblower
to ensure that he or she is given an adequate remedy if subjected to dismissal or other detriment; and
to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure.
As things stand at present, our law addresses the second of those objectives – it does provide a remedy (through the employment tribunal system) for a whistleblower who is dismissed or otherwise victimised. In its recent Response to the Whistleblowing Call for Evidence , the UK government made it clear that “the whistleblowing framework is a remedy not a protection” – so objective 1 is not fulfilled by the law as it stands. It also conceded that “the framework is about addressing the workplace dispute that follows a disclosure rather than the malpractice reported by the disclosure”. So objective 3 is not part of our legal framework in any explicit way.
Project whistle. Photo by Holly Occhipinti. CC BY-SA 2.0, via Flickr
On the government’s own analysis, then, the current legal framework on whistleblowing is not fit for purpose. One would expect this frank confession to be followed by a pledge to take action. In particular, what can be done about dealing with the danger and/or wrongdoing which the whistleblower has exposed?
The Call for Evidence and the debate which surrounded it certainly came up with various proposals. Primarily these focused on the role of the regulator. In statutory terms, the various regulators for everything from financial wrongdoing to patient neglect are known as “prescribed persons”, and are listed in statutory instruments promulgated from time to time. The whistleblower is entitled to make disclosures to such “prescribed persons” if they are reasonably believed to be true, and the prescribed person is one who is stated by the statutory instrument to be relevant in relation to the matters disclosed.
It follows that these regulators (such as the Financial Conduct Authority, the Environment Agency, the Health and Safety Executive, the Children’s Commissioner, and the Care Quality Commission to name a few random examples) could play an incredibly important role in furthering objective 3 above.
Prominent among the proposals for reform were those put forward by a prestigious commission set up by the charity Public Concern at Work. It made a number of suggestions across the board. But particularly material to the role of the regulator were the following:
regulators should require the organisations for which they are responsible to have effective whistleblowing arrangements in place
they should review the licence of those organisations which do not have such arrangements
a statutory Code of Practice for employers would provide the template for determining whether such arrangements were effective or not
the regulators should provide feedback to whistleblowers, or explain why it is not possible to do so
the current system of referral of employment tribunal claim forms should be strengthened to make referral mandatory unless the claimant opted out.
The only legislative response from the government has been that contained in clause 135 of the Small Business, Enterprise and Employment Bill 2014 . It gives the Secretary of State power make regulations to require a regulator to produce an annual report on whistleblowing. The regulations would set out the matters to be covered, but not in a form which would enable identification of either the whistleblower or their employer. They would set out requirements for publication e.g. by way of a report to the Secretary of State or on a website.
So far so good, and the proposed clause mirrors one of the suggestions emerging from the Public Concern at Work commission. Standing by itself, however, it is a totally inadequate response.
The crucial point is: what action will the regulators take in order to further the public interest? It is their role “to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure”, as the government put it in its Response to the Call for Evidence. The proposals set out by the Public Concern at Work commission, or something very like them, are crucial if we are to hear the question “Why didn’t anyone in the know say something about it?” less frequently in future.
The current series of Judicial Pension Scheme claims have raised two interesting points under the most recent Employment Tribunals Rules, introduced in July 2013. Although ultimately neither required determination, the issues highlighted are worth exploring.
The first issue is where the dividing line between preliminary and final hearings should fall. Rule 57 defines a final hearing as one “at which the Tribunal determines the claim or such parts as remain outstanding following the initial consideration (under rule 26) or any preliminary hearing.” The problem is the seemingly very broad definition of “preliminary issue” being one of the things which a tribunal may determine at a preliminary hearing.
A preliminary issue in the context of a complaint means “any substantive issue which may determine liability…” (r. 53(2)). Again, the definition of “substantive” is not entirely clear. It is a word much misused by the drafters of previous iterations of the Rules but is likely to mean something which exists independently of the main issue in the proceedings. So (as per one of the examples in r. 53(2)), in a complaint of unfair dismissal, whether there has been a dismissal or not would be a substantive issue. But then, so it would appear, is a dispute over the reason for the dismissal, an issue historically always dealt with as part of the final hearing. In this context the problem is largely academic except in those very rare cases where a full tribunal will sit for the final hearing. It remains potentially an area of practical difficulty in discrimination claims.
In the current Judicial Pension Scheme cases, three principal issues have fallen for determination at a series of hearings that all parties have agreed to define as preliminary hearings. The first is whether a claimant holding a particular fee-paid judicial office is engaged in the same or broadly similar work as a named comparator who is salaried holder of another, sometimes quite different, judicial office. That looks like a perfectly bona fide preliminary issue as the comparator hurdle must be cleared in order to demonstrate entitlement to bring the proceedings.
The next logical question would then be whether there has been less favourable treatment, e.g. in the payment of fees for attending training. This too seems to have a life independent of the main question, namely whether there has been a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The third question, whether any less favourable treatment has been objectively justified, seems – instinctively – much less ripe for preliminary determination, although in these cases it has been treated as a preliminary issue without objection. Based on these decisions, my understanding is that the drafting of the definition of “preliminary issue” is deliberately wide.
A second point raised by the recent JPS claims is how the costs rules should be applied to lead cases (r. 36). Rule 74(1) defines costs in terms of those incurred by or on behalf of the receiving party who – in a case to which r. 36 applies – appears to be the lead claimant. But in some cases, many people may have contributed to a fighting fund, while the lead claimant’s contribution to that fund may have been negligible. This difficulty is starkly demonstrated by the question of fees where a multiple has come together as the result of many claimants presenting their own claims without reference to each other over a period of time. In this case, each would incurr a separate issue fee. While the problem over legal costs might be resolved by an agreement between all the claimants – in which the lead claimant agrees to take primary responsibility for the costs subject to an indemnity from the related case claimants – such situations are likely to rare and would not seem to be applicable to the fees incurred by individuals in any event. There is a similar problem where the respondent seeks costs against a lead claimant.
However, r. 36(2) may provide a solution. It seems likely that the costs could and probably should be treated as one of the common or related issues in the case. If so, then the decision made is binding on all the parties in the related cases. Careful wording of the judgement would be required, but there seems little doubt that an order that the respondent pays the lead claimant’s tribunal fees would apply to the fees of all other claimants. Similarly, a judgement that the lead claimant pays the respondent’s costs would be enforceable against all claimants. Whether the judgement should be for a full or proportionate amount should then be a matter for determination on the facts of each case. The obvious problem then becomes one of enforcement.
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Image credit: Gavel. By Kuzma, via iStockphoto.
