Whistleblowing disclosures protected even after employment ends
The ‘whistleblowing’ provisions of the Employment Rights Act 1996 protect workers who make a ‘protected disclosure’ against being dismissed or suffering other victimisation because of the disclosure. A ‘protected disclosure’ is a disclosure of information relating to one of six types of ‘failure’ by the employer. In the next case, the EAT decided that a disclosure of information after employment ends can be a protected disclosure.
The Claimant, a solicitor, wrote a letter to the law firm that had previously employed him threatening to bring a claim against it. He also wrote a letter of complaint about the firm to the Legal Complaints Service. The former employer retaliated by reporting the Claimant to the Solicitors Regulation Authority (SRA) making allegations of forgery and dishonesty against the Claimant, which led to the SRA investigating him.
The Claimant brought a whistleblowing claim in which he argued that his ex-employer had subjected him to a detriment by reporting him to the SRA. He argued that the reasons for this detriment were that he had made two protected disclosures, in the letter to the ex-employer and the letter to the Legal Complaints Service.
The ET dismissed the claim because it believed that a disclosure after termination of employment could not be a protected disclosure. The Claimant appealed.
The EAT allowed the appeal and remitted the whistleblowing claim to a different tribunal to decide the merits. Disagreeing with the tribunal, the EAT ruled that a protected disclosure after employment had ended was protected by whistleblowing. This is because the whistleblowing provisions of the Employment Rights Act define a ‘worker’ as ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment….’
As the necessary detriment may arise post-termination (eg.by a former employer providing a negative reference on an ex-employee), the EAT could see no reason to limit the disclosure to the duration of the employment.
Common scenarios in which a worker is likely to argue that a former employer has subjected them to a detriment for a post-termination protected disclosure are where the worker is not considered for future employment with the employer, and where an employer refuses to provide a reference or gives a negative reference to the ex-employee.
This latest ruling of the EAT means that employers should be alert when dealing with ex-employees, particularly where the exit was not amicable.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to firstname.lastname@example.org
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