Whistleblowing protection continues after employment has ended

The judgment by the Employment Appeal Tribunal (EAT) in the case of Onyango v Berkeley (t/a Berkeley Solicitors) (2012) was short and sweet so our article will be also!

The case concerned a solicitor who was employed by Berkeley Solicitors between 2009 and 2010. After the solicitor left his employment he wrote a letter before action in preparation for a claim against Berkeley and also a letter to the Legal Complaints Service. Berkeley then reported the solicitor to the Solicitors’ Regulatory Authority (SRA), which led to an investigation by them against him. The solicitor brought a number of discrimination claims in the Employment Tribunal 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, in writing the letter before claim and the letter to the Legal Complaints Service.

The Tribunal dismissed all claims and ruled, in relation to the whistleblowing claim, that a disclosure after termination of employment could not be a protected disclosure. This decision was appealed to the Employment Appeal Tribunal (EAT) by the solicitor and the appeal was successful. The EAT had “no hesitation” in accepting that such a disclosure after termination of employment could be protected and this was clearly provided for in the legislation.

Case law identifies that a qualifying disclosure can be protected under whistleblowing law, whether it was made:

• During employment with an employer.
• During employment with a previous employer.
• After employment has terminated.
• Before the whistleblowing legislation came into force.

The most likely scenario in which a worker could argue that a former employer has subjected them to a detriment for a post-termination disclosure is where an employer refuses to provide a reference, or refuses to consider them in a future recruitment exercise.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.