Employers Beware: Post-termination Whistleblowing

In the recent case of Onyango v. Berkeley Solicitors, the UK Employment Appeal Tribunal ruled that an employee was allowed to bring a ‘whistleblowing’ claim relating to a protected disclosure that was made after the termination of his employment.

Under UK law, workers are protected from receiving detrimental treatment as a result of raising a concern about certain types of wrongdoing occurring in the workplace. In Onyango, the Claimant (Mr. Onyango) brought a claim in the Employment Tribunal alleging that as a result of making a protected disclosure, he was accused of forgery and dishonesty which ultimately led to him being investigated by the regulatory body for solicitors in the UK, the Solicitors Regulatory Authority. The Employment Tribunal held that it did not have jurisdiction to hear Mr. Onyango’s claim because he had made the protected disclosure after the termination of his employment and that it could only hear the case where such disclosure was made during the course of his employment. Mr Onyango appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal allowed the appeal on the basis that the ‘whistleblowing’ legislation (section 47B of the Employment Rights Act 1996) did not limit Mr. Onyango’s protection to disclosures that were made during the course of his employment and a post-termination disclosure may be relied on where it leads to detrimental treatment. The Employment Appeal Tribunal therefore ruled that Mr. Onyango was entitled to bring a claim and the matter was referred back to the Employment Tribunal for determination of the complaint.

In reaching its conclusion, it was the Employment Appeal Tribunal’s view that since the detrimental treatment must be caused as a result of the protected disclosure, the detriment must therefore occur after the disclosure and because the detrimental treatment may arise after termination (under the legislation), the Employment Appeal Tribunal found no justification for limiting the period in which the disclosure is made to the duration of the employment.

What does this mean for employers?

This case highlights the importance for employers to ensure that they take an equal level of care both prior to and post termination to avoid subjecting an employee to detrimental treatment as a result of that employee making a protected disclosure, even where the protected disclosure is made after the employment terminates.

Other Forthcoming Whistleblowing Developments

The Government has recently announced a number of intended changes to the current whistleblowing legislation, via the Enterprise and Regulatory Reform Bill (which is currently passing through Parliament), as follows:

• Protecting whistleblowers from bullying or harassment by co-workers. Under the current legislation, whistleblowers are only protected from bullying or harassment by their employer and not by co-workers e.g. official acts, such as demotion, rather than acts of harassment of which the employer may not be aware. The Government proposals, therefore, will mean that an act of detrimental treatment by one co-worker towards another who has made a protected disclosure (e.g. about that first person) will be treated as though that detrimental treatment was caused by the employer. Consequently, the employer will be responsible for the damages. The Government has however proposed a defence for an employer which is able to show that it took all reasonable steps to prevent a co-worker from subjecting another co-worker (who made a protected disclosure) to detrimental treatment. This encourages employers to implement clear and active policies and training on whistleblowing across the workforce and also to take specific and proactive action to notify any “accused” employee of their duty not to subject the accuser to any detrimental treatment where a protected disclosure is asserted.
  
  
• Extending the protection of the legislation to job applications – currently only existing workers are protected. This extension would prevent the blacklisting of potential job applicants who had made protected disclosures against their former employers. Withdrawing an offer to an applicant on discovery that they had sued their former employer for unfair dismissal would accordingly become more dangerous, in case the action had a whistleblowing background.
  
  
• Good faith and public interest - the Government is intending to remove the current requirement for protected disclosures to be made “in good faith”; rather, Tribunals are to be granted the power to reduce compensation by up to 25% where a protected disclosure has not been made in good faith. To counteract the impact of this change, the proposal also includes a requirement that the disclosure must, in the worker’s reasonable belief, be “in the public interest” (in line with the original spirit of the framework legislation: after all, entitled the Public Interest Disclosure Act). This last addition is also intended to remove the ability of employees to claim whistleblowing based on a breach of their own contract (such  as a reduction in bonus levels or a breach of the duty of trust and confidence) – a construction of the current legislation which has caused many an employer a headache in termination settlement discussions.

You can see the Enterprise and Regulatory Reform Bill updated policy paper here. Keep up to date with the developments on this wide-ranging bill and its progress towards enactment by following us on Twitter @OrrickEmpUK.