Disclosures made after employment ends can be protected under whistleblowing rules says tribunal

The Employment Appeal Tribunal said that a "disclosure" made after employment was terminated could still be classed as a "protected disclosure" under the relevant laws, provided that the worker suffers some sort of a "detriment", such as a refusal by the employer to provide a reference.

The decision comes shortly after the Government in the House of Lords announced that it would remove the current requirement that a disclosure must be made in "good faith" in order to be able to benefit from whistleblowing protections. An amendment to the Enterprise and Regulatory Reform Bill, which is currently before Parliament, will instead give tribunals the power to decrease any compensation awarded by up to 25% where a disclosure has not been made in good faith.

The term 'whistleblowing' refers to an employee telling a prescribed person or a person in authority at the employer about alleged dishonest or illegal activities occurring within an organisation or company. Whistleblowers may make their allegations to other parties within the company, known as 'internal' whistleblowing, or to external regulators, law enforcement or to the media in limited circumstances.

Legal protection for whistleblowers was introduced in the UK in 1999 as an amendment to the Employment Rights Act (ERA). The rules protect employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution by their employers such as dismissal or being passed over for promotion. In addition, where an employee is dismissed for making a protected disclosure, this dismissal is automatically unfair.

The case involved a solicitor, Mr Onyango, who was employed by a firm called Berkeley Solicitors between March 2009 and June 2010. In August of that year he wrote a letter to the head of the firm, stating that he was about to take action against him relating to his former employment, which he followed up with a letter to the Legal Complaints Service about Berkeley one month later. Berkeley then reported Onyango to the Solicitors Regulation Authority (SRA), which regulates lawyers based in England and Wales, citing allegations of forgery and dishonesty.

Onyango brought a number of discrimination claims against his former employer, as well as a whistleblowing claim in which he argued that by reporting him to the SRA, Berkeley had subjected him to a detriment. He said that his letters to Berkeley and to the Legal Complaints Service were both protected disclosures. Previous case law had established that a detriment occurring after the employment relationship has ended as a result of a disclosure made while employed was protected, as is a claim against a current employer based on a protected disclosure made while working for a previous employer. After the original employment tribunal dismissed all of Onyango's claims, he appealed the whistleblowing claim to the employment appeal tribunal (EAT).

Judge Peter Clark said that he had "no hesitation" that disclosures made after the employment relationship had ended could be protected "as a matter of pure construction" of the legislation.

"Worker and employer are defined ... as those who are or have ceased to be in a contractual relationship of service or core services," he said. "These parties were in that relationship. Since the detriment must occur and be causatively linked to the protected disclosure, it follows that it must come later in time and since the detriment may arise post termination we can see no warrant for limiting the disclosure temporarily to the duration of the employment."

He referred Onyango's case to a different employment tribunal, which now establish if Onyango suffered "detrimental treatment" as a result of his disclosure.