Labour & European Law Review Weekly Issue 319 16 May 2013
The law says that whistleblowers should not suffer any detriment (disadvantage) because they made a protected disclosure. In Onyango v Adrian Berkeley t/a Berkeley Solicitors, the Employment Appeal Tribunal (EAT) held that whistleblowers are protected even if their employment has come to an end.
Mr. Onyango, a solicitor, worked for Berkeley Solicitors between March 2009 and June 2010. After he made what he described as a protected disclosure to his former employers in August and the Legal Complaints Service in September 2010, his employer accused him of forgery and dishonesty which resulted in him being investigated by the Solicitors Regulatory Authority.
He then claimed that he had been unfairly dismissed (among other things) and subjected to a detriment contrary to section 47B of the Employment Rights Act 1996 (ERA).
Section 47B(1) ERA states that: "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."
The tribunal said that it did not have jurisdiction to hear his complaint because the statute only applied during the period of his employment.
As the protected disclosure was made after his employment terminated, he could not rely on section 47B.
The EAT allowed Mr Onyango’s appeal. It held that, following the decision of the House of Lords in Rhys-Harper v Relaxion Group Plc and the Court of Appeal in Woodward v Abbey National, there was no reason why a section 47B complaint could not rely on post-termination detriment.
Firstly, the statutory wording did not contain a limitation stating that it applied only to protected disclosures made during the period of employment.
Secondly, the definition of worker and employer in section 230 ERA referred to “those who are or have ceased to be in a contractual relationship of service or core services”, which covered the situation of Mr Onyango and his former employer.
Thirdly, as the detriment had to be causatively linked to the protected disclosure, it followed that it must come later in time, with the result that there was no reason to limit the time when disclosure could be made to the period of employment.
Nor was there any significance in the use of the present tense in sections 43A to C - they were just concerned with the quality of the disclosures when they were made, not with the “temporal point which is raised in the present case”.
It held that post-termination disclosures could therefore be relied on if they led to detrimental treatment. It was in line with the legislative purpose of protection for whistleblowers and entirely consistent with the recent cases to which the EAT had referred.
The tribunal was therefore wrong to say it did not have jurisdiction and the EAT allowed the appeal. It remitted the case to a different employment tribunal for a decision about the merits of Mr Onyango’s claim.