Whistleblowing: disclosures made after a worker’s employment ends can be protected
In Onyango-v-Berkley Solicitors the Employment Appeal Tribunal (“EAT”) held that a disclosure of information after employment ends can constitute a “protected disclosure” under the whistleblowing legislation, (Public Interest Disclosure Act 1998), which is contained in Part IV of the Employment Rights Act 1996 (“ERA”).
Section 47B of the ERA protects workers from being subjected to any detriment by their employer on the grounds that they have made a protected disclosure, commonly referred to as whistleblowing.
To qualify as a protected disclosure the information disclosed must, in the reasonable belief of the worker, show that one of following has occurred, is occurring, or is likely to occur:
- A criminal offence.
- Breach of any legal obligation.
- Miscarriage of justice.
- Danger to the health and safety of any individual.
- Damage to the environment.
- The deliberate concealing of information about any of the above.
If, having made a qualifying disclosure, the worker is then as a direct consequence subjected to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects etc) by his/her employer he/she may be entitled to protection under the whistleblowing legislation.
The Court of Appeal previously ruled that a detriment occurring after the termination of employment, in respect of a protected disclosure made during employment, did qualify for protection under the legislation. However, the EAT has recently considered the question of whether a disclosure made after employment ends can also constitute a protected disclosure and allow the former worker/employee to bring a whistleblowing claim.
Mr Onyango had been employed as a solicitor by Berkeley Solicitors (“Berkeley”) until 15 June 2010. On 13 August 2010 he wrote a letter to Berkeley, relating to his former employment and threatening litigation. On 17 September 2010 he wrote a letter to the Legal Complaints Service about Berkeley. Berkeley then reported Mr Onyango to the Solicitors Regulation Authority (SRA), citing allegations of forgery and dishonesty, which led the SRA to investigate Mr Onyango.
Mr Onyango brought a number of discrimination claims against Berkeley, plus a whistleblowing claim in which he argued that Berkeley 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, by writing the letter to Berkley on 15 August 2010 and then the letter to the Legal Complaints Service.
Mr Onyango’s claims were unsuccessful at the Employment Tribunal (ET). Mr Onyango appealed against the ET’s decision that a disclosure made post-termination of employment could not constitute a protected disclosure.
The EAT held that such a disclosure could be protected under the whistleblowing legislation. It pointed to the fact that workers and employers are defined in the legislation as those who are or have ceased to be in the necessary contractual relationship and since detriment may arise post-termination, the EAT could see no reason to limit the protected disclosure to that which arose during the period of employment.
This case follows in the footsteps of previous decisions giving a wide interpretation to the law on the timing of protected disclosures. Employers therefore need to be careful in their treatment of former workers/employees who have disclosed information either before or after their employment has ended, which could afford them protection under the whistleblowing legislation. The most likely scenarios in which a worker/employer is likely to argue that a former employer has subjected him/her to a detriment, for a post-termination protected disclosure, is where the employer refuses to provide a reference or refuses to consider him/her in a future recruitment exercise.
This case may also be important in the context of the standard confidentiality clauses used in NHS compromise agreements, which have been in the news recently. Since this case provides that a disclosure made after employment ends can be a protected disclosure, this calls into question the extent to which such clauses are enforceable where the purpose or effect of the clause is to silence a would-be whistleblower. As a result all compromise agreements should spell out (in plain terms) that the terms do not prohibit a worker/employee from making a protected disclosure. For guidance on the use of confidentiality clauses in NHS compromise agreements please click here.