Elstone v BP plc & Another  UKEAT/0141/09
The EAT has held that a worker may succesfully claim to have suffered detriment from his current employer as a result of having made a protected disclosure to his or her previous employer.
Section 47B of the Employment Rights Act 1996 (the “ERA”) provides that “a worker has the right not to be subjected to any detriment ... by his employer on the ground that the worker has made a protected diclosure.” A protected disclosure can be a complaint about any of a broad range of issues, such as health and safety concerns or failures to comply with legal obligations, and can be made to various qualifying persons including, but not limited to, employers.
E worked for P Ltd. One of P’s clients was BP. During his employment, E made a number of disclosures to senior BP managers about his concerns in relation to safety issues. P took the view that E had disclosed confidential information to BP and dismissed him for gross misconduct.
Three days later, E was appointed as a consultant to BP, with whom he had worked for 25 years prior to joining P. BP were subsequently informed by P that E had been dismissed for gross misconduct for disclosing confidential information. As a result of this information, BP told E that it was no longer prepared to engage him as a consultant.
E claimed that he had been subjected to a detriment by BP as a result of his protected disclosure about P.
The Employment Tribunal decided that a worker can be subjected to detriment by an employer other than the employer in respect of whom the disclosure is made.
The EAT agreed and held that a worker is protected from being subjected to detriment in his current employment as a result of having made a protected disclosure at any time while a worker, regardless of the identity of that worker’s employer at the time of making the relevant disclosure.
The onus rests with an employee to persuade a Tribunal that the detriment suffered was due to them having made a protected disclosure.
What this means in practice
Employers should be mindful that if the principal reason for dismissing an employee or worker is because they made any protected disclosure, such a dismissal will be automatically unfair. An employee does not need one year’s service to bring a claim. So, take the scenario in which a new employee joins you who in the first week makes you wonder if you made a good recruitment decision. You phone a friend at his previous employer who tells you that he is a nightmare – always complaining and raising grievances – he even accused your friend of bullying! You part company with the employee. The employee could bring a whilstblowing claim against your Company.
Once it is established that an employer is aware that an employee has made a protected disclosure, that fact may be used by an employee to ground a detriment or unfair dismissal claim, even where the relevant disclosure is wholly unconnected to the employee’s current employment.
One to be aware of!