Employment Bill [HL]

moved Amendment No. 9: 9: After Clause 4, 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 (c. 23), the President shall, within 28 days of receipt of the claim, publish electronically and without charge the names of the parties and the relevant regional office. (2) A person who is not a party to those proceedings may obtain from the tribunal a copy of such documents from the proceedings as he may obtain under the Civil Procedure Rules where proceedings are brought in a court. (3) In this section, ““President”” has the same meaning as in section 7A(3).”””” The noble Lord said: My Lords, I shall refer to proceedings brought under the Public Interest Disclosure Act, which, typically, are claims for wrongful dismissal after the employee has raised some concern of public interest relating to wrongdoing in the firm or company. It may involve fraud, health and safety matters or some other criminal or tortious complaint, after which the employee is dismissed. No doubt, I shall occasionally refer to that employee as a whistleblower. In Grand Committee, I sought to amend the Bill with a new clause to the effect that when proceedings included a claim under the Public Interest Disclosure Act, all the employment tribunal papers—that is, the claim, the defence, the judgment, et cetera—would be publicly available after the conclusion of the proceedings, subject only to certain restrictions on publicity. My noble friend Lord Jones of Birmingham opposed that amendment on the ground, among other things, that it would involve the publication of unproven allegations made against an employer. I argued that no allegation would go on the public record without the employer having an equal opportunity for his full and considered response to be made available at the same time. Since Grand Committee, however, the charity which I shall refer to as the whistleblowers’ charity—formerly known as Public Concern at Work, of which I am patron—has been in touch with officials of the Minister’s department as well as with the CBI and the Engineering Employers’ Federation to see if a way could be found through the disagreements by an amendment conceived perhaps on a different basis. I would strongly argue that the present position is extremely unsatisfactory, because it so happens that 70 per cent of claims brought under the Act are shrouded in secrecy owing to the fact that they are settled rather than determined after a tribunal hearing. At present, regulations emanating from my noble friend’s department—or under its old guise as the Department of Trade and Industry—prevent publication of any information about claims for wrongful dismissal based on an employee being dismissed for disclosing wrongdoing in the workplace unless the claim is disposed of after a tribunal hearing. But if it is disposed of in a settlement that has been reached in private, there is no way of getting access to the papers. Unscrupulous employers can therefore buy off a whistleblower rather than address and deal with the malpractice that he has brought to the employer’s attention. Nobody will know about the wrongdoing that has been brought to their attention. It also means that an unscrupulous employee is encouraged to bring spurious Public Interest Disclosure Act claims as a tactic, perhaps to secure a higher settlement than he would otherwise get. The secrecy surrounding that great majority of 70 per cent of public interest disclosure claims also means that no one—no interested third party, no regulator, not even a Minister of the Crown—can find out from employment tribunal records what claims may have been brought relating to, in recent examples, mismanagement at Northern Rock or the problem of C. difficile at a particular hospital. My approach in the present amendment, which is deliberately different from the one that I tabled in Committee, is to transplant the general Civil Procedure Rules of the High Court into the world of employment tribunals. In recent years the Government have sought more and more to emphasise that tribunal proceedings, whether on employment or otherwise, are part of the independent judicial system and not of the Administration. It therefore seems appropriate that the Civil Procedure Rules of the High Court should be adapted for Public Interest Disclosure Act claims in an employment tribunal. Under those rules, and I speak only of particular relevant ones, the general rule would be that a member of the public could obtain a copy of the employee’s statement of case for wrongful dismissal. But—and this is most important bearing in mind the Minister’s objection in Grand Committee to which I referred—as the statement of case will contain unproven allegations, because it is the employee’s case only, the tribunal may determine that the statement of case should not be made available or should be made available only in an edited version, or only to certain persons or classes or persons, or on such other terms as the tribunal thinks fit. In other words, if there is any unfairness seen in publishing the statement of case but not the other side, then the tribunal will determine whether or not it is right. In other words the tribunal can take into account any argument put to it on the lines of the Minister’s concern about unproven allegations being made public, though I might say to my noble friend that every criminal court, every civil court and every tribunal start every day with unproven allegations. Civil court cases and employment tribunal cases are sometimes settled and the other side is not necessarily known. Further, any other document relating to the case—for example, the defence—and any notice of settlement, which is particularly important, will be made public only if the tribunal permits. To put it another way, the secrecy that at present hides 70 per cent of claims under the Public Interest Disclosure Act will be lifted only in cases where neither party has objected to publicity or the tribunal has not upheld any objection made. Those who advise me at Public Concern at Work have been in touch again with the Engineering Employers’ Federation, which opposes this amendment on the grounds that my proposal to apply the civil procedure open-justice rule to Public Interest Disclosure Act cases is, "““an abuse of the employment tribunal process””." I find it impossible to agree that open justice, an inherent part of our general justice system, can be properly described as an abuse of process. In Grand Committee I quoted the High Court decision of Mr Justice Jackson in 2000 which prevailed until the DTI introduced its no publicity regulations. He said that, "““so far as possible, litigation should be conducted under the public gaze and under the critical scrutiny of all who wish to report legal proceedings””." He continued: "““The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings””." As we are at Report stage, I hope my noble friend the Minister will on this occasion see the advantage of adapting the scheme which has operated in the civil courts—the Civil Procedure Rules—to the employment tribunals. They are, after all, specialised courts and, in many cases, a significant part of the judicial system. I beg to move.