In this case, the Employment Appeal Tribunal (EAT) clarified that the provisions of the Employment Rights Act 1996 (ERA) which give protection from detriment for whistleblowing do apply to former workers where the detriment is closely connected to the employment relationship and related proceedings.
Background
The whistleblowing provisions of the ERA, and in particular section 47B, set out that a worker has the right not to be subjected to any detriment on the grounds that "the worker has made a protected disclosure". The definition of a "worker" for these purposes includes a former worker. Case law has confirmed that a worker who is subjected to a detriment by their former employer after termination of their employment can, in certain circumstances, still bring a claim for detriment under section 47B.
Facts
Dr Day was employed by Lewisham and Greenwich NHS Trust (the trust) as a junior doctor from August 2013 to August 2014. During his employment, he made a number of disclosures relating to patient safety at the hospital. In 2014, Dr Day brought an unfair dismissal and whistleblowing detriment claim against the trust. That claim was heard in 2018, and settled after Dr Day had given his evidence, with the agreement that the Trust would not pursue Dr Day for costs if he withdrew the claim. (Dr Day did not receive any compensation.) The settlement included a joint statement acknowledging that Dr Day had acted in good faith and had not been treated detrimentally.
In 2019, Dr Day brought another whistleblowing detriment claim against the trust relating to allegedly defamatory statements published by the Trust around the time of, and shortly after, the 2018 hearing. Following the settlement, the trust had published three public statements between October 2018 and January 2019. Dr Day alleged that these statements, along with letters sent to MPs and public officials, amounted to post-employment detriment arising from his protected disclosures.
The employment tribunal found that only one of the statements constituted a detriment, but that this was not materially influenced by the protected disclosures. The tribunal found that the trust’s statements were motivated by reputational concerns and media pressure, not by Dr Day’s disclosures. It also held that the claim fell outside the scope of section 47B ERA because the alleged detriments occurred after the employment relationship had ended and concerned Dr Day's actions as a litigant against the trust rather than as a former employee. They were therefore not “in the employment field" for the purposes of the whistleblowing claim.
Dr Day appealed. The EAT disagreed with the tribunal about whether the claim fell within section 47B ERA. It held that the detriments were sufficiently connected to the employment relationship to fall within the scope of section 47B. This is because the protected disclosures were made during employment and the detriment was closely connected to Dr Day's employment as it related to earlier employment tribunal proceedings that were themselves concerned with the same protected disclosures. However, the EAT concluded that the errors by the tribunal were immaterial to the outcome, as the tribunal had correctly found that the protected disclosures did not materially influence the trust’s actions, which was key. It therefore dismissed the appeal.
The EAT acknowledged, however, that not all claims for whistleblowing protection brought by former employees will necessarily fall within the scope of section 47B ERA.
What does this mean for employers?
This case provides important clarification on the scope of whistleblowing protection under section 47B ERA, particularly in relation to post-employment detriment. References and post-employment communications can attract liability if they are materially influenced by protected disclosures. Public statements about former employees must therefore be carefully worded, especially where whistleblowing is involved.
