Whistleblowing – protected disclosures after employment has ended

by Laurie Anstis on February 16, 2013

Whistleblowing, and the protection that employment law gives to whistleblowers, has been much in the news recently. This follows the Mid Staffordshire NHS Trust Inquiry, and the decision of the former Chief Executive of the United Lincolnshire Hospitals Trust to speak out, apparently in breach of confidentiality provisions in his compromise agreement.

In most cases, an employment tribunal whistleblowing claim will depend on two things. First, there needs to be a “protected disclosure” – that is, a disclosure which satisfies the requirements of section 43A of the Employment Rights Act 1996. Second, there needs to be a “detriment”. To paraphrase dreadfully, this means something bad that the employer did to the individual because of the protected disclosure. Typically the most serious form of detriment is dismissal, although the rules relating to dismissal are slightly different.

The most obvious case is where an individual makes a protected disclosure about something his or her employer has done, and then says that they have been subject to a detriment (or dismissal) by that employer because of the protected disclosure. But things can get more complicated than that. This week, the Employment Appeal Tribunal has dealt with the question of what happens when both the disclosure and the detriment occur after the end of the individual’s employment. What if, for instance, after the end of an individual’s employment they report some problem to a regulator, and in retaliation their employer refuses to give them a reference?

That was the kind of scenario that arose in Onyango v Berkeley. In that case the claimant alleged that his letter threatening employment tribunal proceedings, and a report by him to the Legal Complaints Service, both of which occurred after his employment ended, amounted to protected disclosures, and that his former employer had retaliated by making malicious allegations against him.

The employment tribunal hearing the case found these could not count as protected disclosures, as they were made after his employment ended. He could not therefore bring a whistleblowing claim based on them.

In a short judgment, the EAT disagreed. It held that it was already established law that an individual could claim in respect of detriments which occurred after employment ended, and that as the “workers” who were given protection included former workers there was no reason not to say that protected disclosures could be made after employment ended.

So it is now clear that individuals can gain protection against detriments arising from disclosures made after their employment has ended – something which could be significant in the current debate about protection of whistleblowers.

As a postscript, I wonder if this case could lead to some difficult questions about conducting the defence of employment tribunal claims, or threatened claims, along the lines that arose in Chief Constable of West Yorkshire Police v Khan or St Helens Borough Council v Derbyshire. It is inevitable that in bringing or threatening employment tribunal proceedings an ex-employee will be alleging legal failings by their former employer, and so potentially be making protected disclosures. In Mr Onyango’s case, one of his alleged protected disclosures was his letter before action. This may well provoke a reaction from the employer which, outside the context of litigation, could be seen as a detriment. There may be some difficult decisions ahead about what amounts to an unlawful detriment in response to a protected disclosure, and what is simply legitimate robust defence of an employer’s interests in litigation or threatened litigation.

3 comments

Very good post – the Tribunal was obviously wrong.

There is another ramification that is particularly topical. Section 43J provides as follows:

“Contractual duties of confidentiality.
(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.
(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.]”

If the Tribunal’s ruling had been upheld it would mean that compromise agreements purporting to prevent the making of protected disclosures after the end of the employment could be enforced. This would obviously make a difference to the current positions of Gary Walker, Jeremy Hunt and Stephen Dorrell. The key point here is that the expression “protected disclosures” must be construed in the manner prescribed in the earlier subsections of the Act.

Ultimately it would simply make a technical nonsense of the provision in so far as it is designed to regulate post-dismissal compromise agreements, because by definition protected disclosures could not be made post-dismissal.

The narrowness of the definition of “protected disclosure” is one of the respects in which lot of people think the current provisions provide inadequate protection for workers and former workers – but at least the EAT has scotched this particular argument.

by Mark Benney on 16 February 2013 at 1:55 pm. #

Good blog.

I wonder whether a Claimant would raise another PIDA claim about detrimental conduct that is alleged to have occurred during proceedings or instead seek aggravated damages. Perhaps both?

by Jo on 17 February 2013 at 12:10 pm. #

[…] Act and that this can extend to protected disclosures made after the employment has ended  (see the blogpost from Laurie Anstis here), but I haven’t found an authority directly on the scope of S.43J. The question must at least […]

by Whistleblowing and ‘gagging clauses’ | A Range of Reasonable Responses on 18 February 2013 at 12:12 pm. #