With the changing of the seasons, the government’s landmark Employment Rights Bill has now bounced from the Commons to the Lords as it continues its progress through Parliament. After a highly scrutinised passage through the Commons that led to more than 200 pages of amendments tabled, the Bill will be debated in the Lords for the first time on Thursday 27 March.
This Bill provides a critical opportunity to improve whistleblowing protections for everyone in the workplace and revamp the way employers address and manage whistleblowing.
Amendments to the Bill
A total of 264 amendments were tabled in the public bill committee in the House of Commons. The 149 government amendments, put forward following consultations, were agreed to by the committee but all 115 opposition amendments were either withdrawn, not moved, or disagreed to in a division of the committee.
We proposed three amendments to the bill.
The first two centred on scope and test: expanding the scope of who receives whistleblower protections under law to include categories such as self-employed contractors, job applicants and trade union officials, and an amendment to change the test for dismissal.
These amendments were picked up by two Liberal Democrat MPs, Steve Darling and Sarah Gibson, who proposed them in committee. These did not pass but they did receive a response from the Minister for the Employment Rights Bill, Justin Madders MP.
He argued against amending the automatic unfair dismissal test as he said it would be “very difficult to accept the new clause without further consideration of the impact, because the test applies for a whole series of direct tribunal claims for automatic unfair dismissal”. We dispute this consequence; it’s been long established that whistleblowing protection is different from other areas of employment law. The Government can change whistleblowing law in this area without it impacting on other areas of employment law.
On the scope amendment, the Minister couldn’t accept it because of “the plethora of unintended consequences and knock-on effects”, yet we’re not convinced there would be a floodgate of claims because of this change, while the risk is that without this protection some in the workplace won’t speak up. However, the Minister did concede that “[we] are aware of the long-overdue requirement to look at whistleblowing law” and stated that his recent meeting with Protect was part of that conversation. We took this as hugely encouraging – and are following up directly on his comments.
A Duty to Investigate
Our third amendment focuses on introducing a duty on employers to investigate whistleblowing concerns made to them. This was taken up at the Report stage by the Labour MP Alex Sobel who stated that “The status quo provides only an after-the-event remedy for whistleblowers, and this new clause would ensure that there are channels for whistleblowers from the start.”
During the debate, Julian Smith MP, a former Conservative Cabinet Minister, asked if the government would consider adopting the amendment, to which Justin Madders’ responded by saying the Government has “begun to consider it, as [whistleblowing] legislation is now a quarter of a century old and needs looking at”.
Whilst none of these amendments have yet been accepted, we were pleased that the Minister accepted that whistleblowing law needs updating.
However, one of the most significant new topics introduced to the bill through new clauses and amendments was the increase in time limits within which people can make a claim to an employment tribunal (for almost all claims), from three to six months. This has huge significance to whistleblowing and whistleblowers – improving their access to justice and their opportunity of seeking redress. As yet, no change has been made to the very short time frame (7 days from the date of dismissal) to bring an interim relief claim.
Steps forward
With the Bill now moving forward in the Lords, we have further opportunities to press our amendments and build support amongst peers. With the Government accepting the need for change, we just need to hold their feet to the fire and keep on pushing.