employment law and interim relief to whistleblowers

Summary

The request sought information regarding the omission of interim relief provisions for whistleblowers in the Isle of Man's Employment Act 2006. The Department for Enterprise disclosed draft notes, correspondence, and emails explaining that the provision was not included because it was not raised as an issue at the time and would require a new bill to add.

Key Facts

• Officers from the former Department of Trade and Industry drafted the Employment Act 2006 proposals without including interim relief.
• The omission was not due to political constraints but because no one had raised the issue in the Island at the time.
• Adding interim relief provisions now would require a new employment bill.
• The UK's Employment Rights Act 1996 interim relief section was significantly amended by Blacklisting Regulations in 2010.
• The authority initially missed sending some documents but provided them in a follow-up on 10 January 2022.

Data Disclosed

• 2006
• 1996
• 2010
• 2011
• 2021-12-01
• 2021-12-29
• 2022-01-10
• 16 August 2021
• 83 pages
• 7 documents

Original Request

The political will of Tynwald was to "modernise" Isle of Man employment law and the established process is to update outdated no longer fit for purpose Isle of Man legislation with reference to at least UK legislation. However, based on existing available information such as the public consultation and legislation explanatory notes, it appears that the interim relief legal provisions that would have resulted in a consistently effective Isle of Man Government whistleblowing policy were inexplicably omitted from the Employment Act 2006 and that they may have been the only such legal provisions omitted in the draft legislation. Please release any and all information related to interim relief to whistleblowers and in particular firstly draft and final department scope to draft Employment Act 2006 legislation (or any other relevant employment legislation) and secondly minutes, filenotes, emails, letters, reports, etc related to a decision to either include or exclude the most effective mechanism to support whistleblowers in the national interest given the relative importance to employees wellbeing, health and safety, public health, the public interest and the national interest.

Data Tables (15)

Full Response Text

Extract from correspondence between officers on the subject of interim relief

From: [redacted]>
Sent: 16 August 2021 15:34 To: [redacted]> Subject: FW: Employment Act 2006 and [redacted] Hi [redacted] Welcome back and I hope you had a nice break. [redacted] [redacted] was interested in drafting notes because he wanted to know whether the drafters were given free rein to, in his words, “cut and paste the UK legislation in its entirety” or whether there were political constraints. He mentions the omission of interim relief at employment tribunals. ( I checked the relevant section in the Employment Rights Act 1996 and it has in any case been significantly amended by Blacklisting Regulations in 2010) [redacted] Best wishes [redacted]

From: [redacted]attgen.gov.im> Sent: Monday, August 16, 2021 2:14:17 PM To: [redacted] Subject: RE: Employment Act 2006 and [redacted]

Many thanks [redacted]

[redacted]

I have looked at the interim relief section in the Employment Rights Act 1996 and it was in any case significantly amended in 2010 by Blacklisting Regulations.

[redacted]

Very best wishes

[redacted]

From: [redacted]>
Sent: 16 August 2021 11:02 To: [redacted]> Subject: Re: Employment Act 2006 and [redacted]

Hi [redacted]

[redacted]

Officers from the then Department of Trade and Industry, namely myself and [redacted], the Equality Adviser at the time came up with the proposals. We didn’t include proposals for interim relief. I can’t recall anyone ever having raised this as an issue in the Island and we were introducing a huge number of new rights.

As you know there are lots of differences between UK and IOM employment law. DfE could bring forward proposals for interim relief but this would require a new employment bill.

[redacted] Best wishes [redacted]

From: [redacted]> Sent: Monday, August 16, 2021 9:50:50 AM To: [redacted] Subject: Re: Employment Act 2006 and [redacted] Hi [redacted] I hope all is well, and I apologise for bothering you , but [redacted] is on annual leave and I think you are the only other person who will know the answer. According to [redacted], you have worked with [redacted] previously. As I understand it, he is participating in a government review into the effect of the 2006 Employment Act in practice. He wanted to access the initial public consultation – they only publish consultations from 2011 on the govt website so am I correct in assuming that I would need to contact the Cabinet Office? He also wanted to see the drafting instructions because he wants to know what the parameters were. Were you free to adopt the UK legislation verbatim, or were political constraints placed on what could and could not be adopted? He is especially concerned over the lack of provisions for interim relief in employment tribunals. Many thanks and apologies Kind Regards [redacted]

From: Subject: FOI request on interim relief Date: 10 January 2022 14:54:00 Attachments: image001.png 20220110 Letter re. FOI request on interim relief.pdf Emails between IOM Govt officer and former officer.pdf Interim Relief.msg Procedure Interim Relief.msg Whistleblowing and Interim Relief in Covid times.msg Interim Relief in Equality Act cases.msg Dear   Further to your FOI request on interim relief and our letter to you dated 29 December 2021, we mistakenly left out some of the information covered by your FOI request. I attach:   a)       A covering letter; b)      Extracts from emails between officers covering interim relief; and c)       Four “Employment Law Update” emails which refer to interim relief in the UK.   I do apologise for these not being sent out with the letter dated 29 December 2021.   Kind regards

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Yours sincerely

Please quote the reference number 2122153 in any future communications.

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In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely

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Department of Trade & Industry Rheynn Dellal as Jeadys

Drafting Instructions with amendments

Employment Bill 2004

Instructions in respect of that part of the Bill based on Proposals arising from
“Review of Legislative Changes”

A : INSTRUCTIONS RELATING TO THE BILL AS A WHOLE

1. The Government’s Legislative Programme

The Employment Bill 2004 is contained in the Government’s 2003/04 Legislative Programme.

At a meeting on 19th September 2002 the Council of Ministers considered a paper submitted by the Department outlining a summary of the proposals contained in the original consultation document “Employment (Amendment) Bill 2002 - Review of Legislative Changes - Public Consultation Document”.

Following consideration of the matter Council agreed that the Department proceed with the consultation process and re-submit the proposals for Council’s consideration following the consultation process.

The Department has now completed the consultation process and has produced a second paper “Employment Bill 2004 Review of Consultees’ Comments / Final Proposals as to the Contents of the Bill”. A summary of this paper has also been prepared.

1. Effect on public expenditure etc.

, Senior Economist from the Economic Affairs Division reviewed all the original proposals put forward by the Department in the first consultation document at the request of the Treasury to assess whether they might be expected to have any impact on the competitiveness of the Island. The following are extracts from report:

“Many of the measures described below will have no appreciable impact on the vast majority of employers or employees in the Isle of Man.

Proposals on minimum holidays, rights for fixed term and part-time workers and parental leave enhance the rights of individual employees. They impose additional labour costs on employers. However, over the long term wages will adjust to compensate and the employment effects are likely to be minimal. In other words, employees end up paying for their new rights in the form of lower wages and there is no effect on productivity or competitiveness (see Nickell and Quintini, 2002)1

Other measures such as the proposals on minimum periods of notice, written statements for reasons for dismissal and compensation in cases of unfair dismissal are forms of employment protection. They impose extra cost on labour adjustment, that is the cost of hiring and firing people. Employment protection slows down flows through the labour market and may raise long-term unemployment and reduce short-term unemployment. It tends to favour middle aged males at the expense of part-time workers, youths and females, but the effects

1 Nickell, S. and G. Quintini (2002), 'The Recent Performance of the UK Labour Market', Oxford Review of Economic Policy, Vol. 18, No. 2, Summer 2002.

2 are small. In so far as productivity and hence competitiveness goes, employment protection may enhance both as workers stay longer with employers and participate more effectively in the workplace but any effect is small (see Nickell and Layard, 1999).2

It is difficult to see how any of the proposals could have a major impact on the competitiveness of the Island's businesses. If any of the proposals do have an impact, they have not been notified during the consultation process. Much of the impact on the Island could arise as a result of a change in perception, rather than any real economic cost. It is also possible that some impact could arise from employers in the Isle of Man adopting employment practices of their parent companies in the United Kingdom.”

The main direct costs to Government which will can be expected to arise out of proposals in the paper “Employment (Amendment) Bill - Review of Legislative Changes” are comprised of the following:

(a) Employment Tribunal running costs

In theory the proposed extension in employment rights has the potential to lead to more cases proceeding to the Employment Tribunal, the running costs of which are borne by the DTI. Most potential cases are, however, resolved through conciliation by the Industrial Relations Service. The Department does not expect a significant net change in the number of tribunal applications.

At present the Tribunal is involved in approximately 15 - 20 cases per year (comprising both interlocutory and full hearings). It is of note that, to date, only one case has proceeded to the Employment Tribunal under the three most recent Acts - the Shops Act 2000, the Employment (Sex Discrimination) Act 2000 and the Minimum Wage Act 2001.

(b) Payments to be made to the Chairman and Members of the Employment Tribunal.

The Department has proposed at Section E12 of the original consultation document that enabling powers should be provided to the Department to allow for certain payments to be made to the Chairman and Members of the Employment Tribunal so that they are properly remunerated for their work. However, the Bill itself would not result in any additional outlay of expenditure and separate concurrence from Treasury would be necessary to implement the proposal through secondary legislation.

The Department has a duty to submit the draft Bill to Treasury for concurrence as part of the post drafting consultation exercise.

1. Sponsoring Department etc.

The Bill is sponsored by the Department of Trade and Industry. Responsibility for the Bill lies with two Ofiicers.
, Equality Adviser is responsible for that part of the Bill relating to the Department’s proposed changes to rights for working and expectant mothers and the introduction of new rights for working parents and carers. , Employment Law Policy Officer is responsible for the rest of the Bill.

1. Principal Objectives

The principal objectives of the Bill are as follows:

 to modernise the Isle of Man employment law framework;
 to provide citizens of the Isle of Man with the basic canons of fairness that are a matter of course elsewhere;
 to encourage participation in the labour market, especially in flexible forms of working, by removing any discriminatory barriers that cannot be justified;
 to contribute to the work / life balance of citizens of the Island; and
 to ensure the Isle of Man is in compliance with those relevant treaties and conventions which are concerned with minimum labour standards and which apply to the Island.

2 Nickell, S. and R. Layard (1999), 'Labour Market Institutions and Economic Performance' in O. Ashenfelter and D. Card (eds.), Handbook of Labor Economics, North Holland, 3c: 3029-84.

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1. Human Rights Issues

The following human rights issue have been identified:

(a) Trade Disputes Act 1985 - basis of appointment of court of inquiry

Please see “Employment Bill 2004 Review of Consultees’ Comments / Final Proposals as to the Contents of the Bill” pages 8-9.

(b) Employment Act 1991 - detriment for union related reasons etc

Please see “Employment Bill 2004 Review of Consultees’ Comments / Final Proposals as to the Contents of the Bill” pages40-43.

Note that the UK Government is proposing to deal with identical issues by way of clauses 23 - 26 of the newly published Employment Relations Bill (see 8 below)

(a) Employment Act 1991 / Employment (Sex Discrimination) Act 2000 - blanket security exemption

Please see “Employment Bill 2004 Review of Consultees’ Comments / Final Proposals as to the Contents of the Bill” page 99.

1. Relevant Treaties, Conventions etc.

There are two particular International Labour Organisation (ILO) compliance issues:

(a) Employment Act 1991 - Protection for employees who take industrial action

Following a complaint by the Isle of Man Trade Union Council, the ILO has asked the Government to improve the rights of persons taking industrial action. For details please see “Employment (Amen

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