BP PLC v Elstone
Under the whistleblowing legislation, workers cannot be disadvantaged (for instance by being dismissed) if they make a protected disclosure. In BP PLC v Elstone, the Employment Appeal Tribunal (EAT) has said that workers are still protected even if they are no longer employed by the same employer when they made the disclosure.
Mr Elstone had worked for BP for over 25 years in a senior role prior to joining Petrotechnics in February 2006. While working for his new employer, he made a series of protected disclosures to two senior BP employees about important safety issues that Petrotechnics said were confidential to them.
The firm then dismissed him for gross misconduct on 4 June 2008 and three days later he joined BP as a consultant. However, once it found out he had been dismissed by Petrotechnics for blowing the whistle, BP said it was not prepared to employ him anymore either.
Mr Elstone brought a claim under section 47B of the Employment Rights Act 1996.
Section 47B states that workers must not be subjected to any disadvantage (or detriment) by their employer because they have made a qualifying protected disclosure.
Sections 43A and 43B define a qualifying disclosure as one that is made by a “worker”. Section 43C does not states that workers have to make the disclosure to their employer, nor does it have to relate to the employer or their business.
The tribunal agreed with Mr Elstone. It said that although the legislation required the whistleblower to be in employment at the date of the relevant disclosure, it did not stipulate that the employer “needed to be one and the same at both the times of disclosure and detriment”.
It said that even if the two employments were not connected “what must be borne in mind is the purpose of the legislation – which is to protect employees and workers, whoever they work for”.
Upholding the tribunal's decision, the EAT stated that “the wording of the statute appears to provide that the act from which a current worker is protected is one which relates to his present employment, and affects only his present employment: but that that which inspires the hostile act by his current employer may (on the wording of the statute) be related to any earlier time at which the current worker was then of worker status, whoever was his employer”.
Using the purposive approach to the legislation (in other words an approach consistent with the purpose of the statute), the EAT decided that the Act did cover such a disclosure to a previous employer.
However, the EAT also made clear that at the time the disclosure is made, the person has to be in employment as a worker, as the legislation does not cover people generally.
In passing, the judge in the EAT also pointed out that the whistle-blowing legislation only covers those who are already ‘workers’ and would not cover someone applying for a job, unlike discrimination legislation which covers job applicants. This was not part of the main decision of the case but it is strong guidance which will no doubt be followed in subsequent cases.