Employment Flash - 1st April 2010

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Can a Claimant claim to have suffered a detriment by the actions of his employer in respect of a protected disclosure which was made at a time when he was neither an employee or worker of that employer? Yes.

BP Plc v (1) Elstone (2) Petrotechnics Ltd [2010] UKEAT 0141 09 DM

E was originally employed by P. E made protected disclosures to BP. P treated the disclosures as breaches of confidentiality and dismissed E for gross misconduct. E took up a consultancy with BP 3 days later. Subesequently BP told E they were no longer prepared to engage him and this was due to P informing them E had been dismissed for gross misconduct.

Disclosure need not relate to the employer, or the employer's business, or be made to the employer (s.43C(1)(b) ERA). The protection against detriment relates to his current employment (s.47B(1)). The point of time of greatest significance for the legislation is that at which the worker is dismissed (Miklaszewicz v Stolt Offshore Ltd [2002] IRLR 344), so that where detriment falls short of dismissal it is then the time at which the worker is subjected to the detriment that is significant. There is no limitation in the statute on the people or entities whose wrongs could be the subject of qualifying disclosures and the legislation was to be construed having regard to its aim of encouraging responsible whistleblowing (Hibbins v Hesters Way Neighbourhood Project [2009] ICR 319). If a statute exists to protect from discrimination or victimisation then it is appropriate to construe it so far as can properly be done so as to afford protection rather than deny it (Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303). The action of the employee that provokes the retaliation must be some activity during the currency of employment, that does not mean the retaliation must be during the currency of the employment, there is no sensible reason for so confining it; if it is in the public interest to blow the whistle then the blower who is victimised should be protected whenever the victimisation takes place (Woodward v Abbey National Plc (No 1) [2006] ICR 1436).

The legislation is to be construed so as to advance the purpose of the legislation which is to provide protection for the public interest whistleblower. The wording of the statute provides that protection from an act is an act within in his current employment (s.47B(1)); the act which inspires the victimisation may relate to an earlier employment (ss.43A, 43B which do not require the worker to be in any particular form of employment).

Is there any reason why "worker" or "employer" in ss.43A and 43B is to be restricted to work under the same contract or the same employer as referred to in s.47B? The purposive approach to the statute of advancing protection to whistleblowers precludes such a restriction; 'protection' rather than the employer's identity is central to the purpose. The statute does not preclude action against a whistleblower when only an applicant for employment, but the absence of that protection (which may be for a number of reasons) does not support any implication that "worker" entails "of the employer who later subjects him to a detriment."