The claimant made a protected disclosure after he had left his employment. He then alleged that this disclosure led to him being accused of forgery and dishonesty in turn leading to his being investigated by the Solicitors Regulatory Authority. The ET held that they did not have jurisdiction to hear his claim of suffering detriment because the protected disclosure had been made after his employment terminated. The claimant appealed.

The EAT allowed the appeal. They accepted the submission that there is no limitation in the statutory wording to protected disclosures made during the relevant employment. Since the detriment must occur and be causatively linked to the protected disclosure, it follows that it must come later in time and since the detriment may arise post termination the EAT could see no warrant for limiting the disclosure temporarily to the duration of the employment.
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Appeal No. UKEAT/0407/12/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 25 January 2013

Before

HIS HONOUR JUDGE PETER CLARK, BARONESS DRAKE OF SHENE, MR B WARMAN

ONYANGO (APPELLANT)

ADRIAN BERKELEY T/A BERKELEY SOLICITORS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS IJEOMA OMAMBALA (of Counsel)

Instructed by:
Blue Sky Law Ltd
Pall Mall Court
61-67 King Street
Manchester
M2 4PD

For the Respondent
MS ANISA NIAZ (of Counsel)

Instructed by:
Messrs Berkeley Solicitors
100-102 Market Street
Droylsden
Manchester
M43 6DE

VICTIMISATION DISCRIMINATION – Protected disclosure

Whether Claimant may rely on post-termination protected disclosure in 'whistleblowing' claim under s.47B Employment Rights Act 1996. He can. Appeal allowed against Employment Tribunal Judgment to the contrary.

1. The novel question raised in this appeal is whether a Claimant may bring a complaint of detrimental treatment under section 47B of the Employment Rights Act 1996 (ERA) on the ground that he made a protected disclosure not during but after the termination of his employment with the Respondent. An Employment Tribunal sitting in Manchester answered that question in the negative for the reasons given at paragraph 47 of their reasons promulgated with a Judgment dated 31 August 2012. Against that part of their decision the Claimant, Mr Onyango, now appeals.

1. There is no appeal against the Tribunal's further finding dismissing his complaints of direct race discrimination, harassment and victimisation.

1. The relevant facts may be shortly stated. The Claimant was employed by the Respondent between March 2009 and 15 June 2010. In his form ET1 he sought to rely on a letter before claim dated 13 August 2010 to the Respondent and a report to the Legal Complaints Service dated 17 September as protected disclosures leading to allegations of forgery and dishonesty made by the Respondent against the Claimant in turn leading to his being investigated by the Solicitors Regulatory Authority.

1. Had this point arisen in say 2002 we should have followed the guidance of the Court of Appeal in Fadipe v Reed Nursing Personnel [2005] ICR 1760 note, 4 December 2001. However, following the House of Lords opinions in Rhys-Harper v Relaxion Group Plc and conjoined appeals [2003] ICR 867 the Court of Appeal decision in Woodward v Abbey National [2006] ICR 1436 held that Fadipe, to which their Lordships were not referred in Relaxion could not stand in light of the decision in Relaxion which overturned the previous learning from the Court of Appeal stemming back to Post Office v Adekeye [1997] ICR 110.

1. The upshot is that a section 47B complaint can rely on post termination detriment to complete the statutory tort. Thus, the only question here is whether the protected act, that is the protected disclosure, may occur after termination of the relevant employment. Ward LJ did not exclude that possibility in Woodward; see paragraph 67, but it did not arise for determination in that case. It does arise directly for decision in the present appeal and we have no hesitation in accepting Ms Omambala's submission that there is no limitation in the statutory wording to protected disclosures made during the relevant employment.

1. Section 47B provides, so far as is material:

"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

Worker and employer are defined in section 230 ERA as those who are or have ceased to be in a contractual relationship of service or core services (we paraphrase).

1. These parties were in that relationship. Since the detriment must occur and be causatively linked to the protected disclosure, it follows that it must come later in time and since the detriment may arise post termination we can see no warrant for limiting the disclosure temporarily to the duration of the employment. Nor do we see any force in Ms Niaz's reference to use of the present tense in section 43 A to C. Those provisions are concerned only with the quality of the disclosures when they are made, not with the temporal point which is raised in the present case.

1. It follows in our Judgment that as a matter of pure construction of the statute post-termination disclosures may be relied on if they lead to detrimental treatment; issues yet to be determined in this case. We think that is also in line with the legislative purpose of protection for whistleblowers and is entirely consistent with the recent authority to which we have referred, save for Fadipe which is no longer to be followed.

1. The Employment Tribunal was wrong, in our judgment, to decline jurisdiction to consider the section 47B complaint for the reasons which are given at paragraph 47 of their reasons. Accordingly, the appeal is allowed and the case remitted to the Employment Tribunal for determination of the section 47B complaint on its merits.

1. Having heard submissions from both Ms Omambala and Ms Niaz as to whether the case should return to the same or a different Tribunal we are, on balance, persuaded by Ms Omambala that in the interests of the perception of fairness the matters should return to a different Tribunal. That is in no way a reflection on the professionalism of the Tribunal which originally heard this case.