Employment Bill [HL]

moved Amendment No. 22: 22: After Clause 6, insert the following new Clause— ““Proceedings in public interest disclosure cases In the Employment Tribunals Act 1996 (c. 17), after section 8 (procedure), there is inserted— ““8A Publication of information (1) Where proceedings include a claim under the Public Interest Disclosure Act 1998, the President shall, within 28 days of the conclusion of the proceedings, publish the relevant papers electronically and without charge. (2) The duty in this section is subject to— (a) sections 10B, 11 and 12 (restrictions of publicity in cases involving national security, sexual misconduct and disability), and (b) a decision by a tribunal or the President that particular information should be omitted or deleted from the relevant papers in that case. (3) A decision may only be made under subsection (2)(b) where the tribunal or the President is satisfied that the publication of that information would be contrary to the public interest. (4) A decision made under subsection (2)(b) shall be in writing and shall include reasons. (5) In this section— ““conclusion”” means determination, withdrawal or settlement of the case or the time when no party has for the previous six months notified the tribunal of action to progress the case to hearing; ““relevant papers”” means any claim, response, further particulars, decision, determination, notice of withdrawal or settlement and any decision under subsection (2)(b); and ““President”” has the same meaning as in section 7A(3).”””” The noble Lord said: First, I declare an interest as patron of Public Concern at Work, commonly known as the whistleblowers’ charity. This charity took the initiative in promoting the Public Interest Disclosure Act 1998, which has its 10th anniversary this year. That Act encourages responsible whistleblowing by employees. It was introduced in the other place by Richard Shepherd, a Conservative Member of Parliament, and in this House by me. It protects employees who express concerns about wrongdoing that threatens the public interest and, in particular, it gives a remedy to a whistleblower who is sacked or otherwise disadvantaged in the workplace. It provides protection most readily where the concern is raised with the employer, but it also protects disclosures made to regulators and wider disclosures where they are justified and reasonable. When the Act was passed 10 years ago, the legal position was that information about claims made under it would be on the public record. This was important because openness would help to discourage specious claims by employees and encourage employers to deal and cope properly with any significant public-interest risk raised with them. However, in 2000, after the DTI lost a High Court case and the judge, Mr Justice Jackson, had confirmed that claims were properly on the public record, the DTI—without consultation or announcement—introduced temporary regulations during the parliamentary recess to reverse this legal position of the claims being on the public record. Later, more permanent regulations were made to remove all information about Public Interest Disclosure Act and other employment claims from the public record. I am afraid that the DTI—I am so glad it is under different management now—had a rather bad record there because, in 2005, the Parliamentary Ombudsman strongly criticised the DTI for its handling of the matter, finding that it had failed to consider the public interest, had repeatedly misled Public Concern at Work to avoid public criticism and had blocked parliamentary scrutiny. The purpose of my amendment is to provide, from now on, open justice and transparency in proceedings under the Public Interest Disclosure Act. At present, no information about any whistleblowing claim brought under the Act is available on the public record unless the claim results in a tribunal hearing and judgment, in which case the decision is available for inspection by the public. What do the employment tribunal statistics tell us? In 2005-06, 1,015 claims made under the Public Interest Disclosure Act were disposed of, but only 283 of them after a tribunal hearing. Information about those cases is on the record, but all the rest—roughly 70 per cent of whistleblowing claims—remain shrouded in secrecy. No information is available about the nature of the wrongdoing alleged, nor about who was at risk; depending on where the employment is, it might be consumers, patients in a hospital, taxpayers, shareholders or fellow employees. No information is available about who the concern was raised with, or the employer’s response to the claim made by the employee whistleblower. Of course, no information is available about any alleged reprisal made by others, whether employees of some rank—a manager or whatever—or the employer himself. One of the most serious consequences of this secrecy is that it enables and encourages an unscrupulous employer to buy off a genuine whistleblower and cover up any wrongdoing by the employer himself or his senior staff. An employer may settle the claim so as to avoid the case going to a hearing with the consequent publicity that, as I have already described, a hearing and judgment in the tribunal would entail. Given that the Public Interest Disclosure Act expressly encourages employees to raise concerns about wrongdoing in the workplace internally so that responsible employers can deal with these concerns properly and without delay, the current secrecy surrounding the great majority of Public Interest Disclosure Act claims undermines the purposes of the Act. The present secrecy means that crime, company fraud, health and safety problems and tax evasions can be readily hushed up, contrary, I suggest, to the public interest. Recent correspondence between Public Concern at Work, which briefed me on this matter, and Ministers, suggests that the Government may oppose my amendment on the basis that its outcome would be to ““name and shame”” employers on the basis of untested allegations. Your Lordships will notice from the wording of my amendment that it is clear that no allegation will go on the public record without the employer having the opportunity for his full and considered response to be made available at the same time. The amendment introduces a strong presumption, but no more than that, that information about whistleblowing cases should no longer be kept secret. It creates a presumption, not an absolute or inflexible rule. New subsection (2) in the clause proposed in my amendment makes it subject to the statutory safeguards that exist for, "““cases involving national security, sexual misconduct and disability””." The presumption is also made, subject to a decision by a tribunal or the president of the employment tribunals, that if the publication of particular information in a case would be contrary to the public interest it must not be disclosed. Where the presumption operates, the information will be made available within 28 days of the conclusion of the case. The conclusion is defined in the amendment, in proposed new subsection (5); it includes where there has been a decision, a withdrawal or settlement of the claim, or where it has not been pursued for six months. The information that will be made available will be the claim, the response, any further particulars and the decision, the notice of withdrawal or the settlement agreed between the parties. That will ensure that anyone obtaining the information can have a balanced rather than a one-sided picture of the whistleblowing case. The information will be made available electronically, by e-mail or on the internet, free of charge. That ensures that the amendment would satisfy the public interest in a way that incurs minimal administrative burden and negligible cost. I beg to move.