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LELR Issue 115 (October 2006)

Contents

In the News
Sick Note
Reasonably Adjusted
You're How Old?
Religious Regulation
Caught by COT3
Blow your Whistle
Giving Notice

Whistle blowing

Blow your whistle

Section 47(B)(1) of the 1996 Employment Rights Act (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 Court of Appeal has decided in Woodward v Abbey National plc (2006, IRLR 677) that that protection applies to former employees, as well as existing ones.

What were the basic facts?

Mrs Woodward was head of financial institutions for Abbey National plc from 1991 until she was made redundant in 1994. She complained in 2003 that the company had subjected her to a detriment, contrary to section 47B of the ERA, because she had blown the whistle on various dubious financial practices while she was still an employee.

She alleged that, since leaving the company, it had failed to provide her with a number of references that she had requested and failed to try to find her any alternative employment.

What did the tribunals decide?

The tribunal decided that it could not hear her claim because it was bound by the 2001 Court of Appeal decision in the case of Fadipe v Reed Nursing Personnel, barring claims relating to events that take place after the person’s employment has ended.

And it distinguished the decision of the House of Lords in Rhys-Harper v Relaxion Group Plc which said that workers could bring claims, post termination of employment, on the basis that “rights enshrined within the Employment Rights Act do not in general terms, apply to incidents occurring after the termination of employment, whereas the Discrimination Acts do”.

The EAT also said it was bound by Fadipe and that it had not been overruled by Rhys-Harper, because the latter only related to discrimination complaints.

Should Fadipe be overturned?

The Court of Appeal said that the first question to answer was whether Fadipe should be overturned.

It looked at the relevant legislation – the ERA and the discrimination legislation – and concluded that although the language and framework were slightly different in each, they were all dealing with the same concept. In other words, to protect employees “from detriment in retaliation for his or her sex, race, disability or whistle-blowing….All four Acts are, therefore, dealing with victimisation in one form or another. If the common theme is victimisation, it would be odd indeed if the same sort of act could be victimisation for one purpose, but not for the other”.

Secondly, it said that it was absurd to limit victimisation to acts during an employment contract, as opposed to events after termination. The Court said that it was difficult to believe that Parliament could have intended to let employers discriminate in giving or withholding references for existing employees but perfectly lawful in the case of ex-employees.

On that basis, the Court ruled that Fadipe was inconsistent with the wider application given by their Lordships in Rhys-Harper and could not stand.

The Court concluded “It simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can. If it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted”.

Comment

This is a sensible decision by the Court of Appeal and means that whistle blowers with claims of post employment victimisation receive the same protection as those with post employment claims of race, sex or disability. However, although the Court now recognises that such claims are possible in practice, it is notoriously difficult to prove the link between the negative reference and the protected conduct.