United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN FODDER (of Counsel) Instructed by: Messrs Shoosmiths Solicitors Waterfront House Waterfront Street 35 Station Street Nottingham NG2 3DQ
For the First Respondent	MISS ANNA BEALE (of Counsel) Instructed by: Messrs Leigh Day & Co Solicitors Priory House 25 St. John's Lane London EC1M 4LB
For the Second Respondent	No appearance or representation by or on behalf of the Second Respondent


 


SUMMARY

JURISDICTIONAL POINTS

VICTIMISATION DISCRIMINATION: Protected disclosure

The central question in this appeal was whether an employee/worker who complained of suffering a detriment from his current employer on the ground that he had made a protected disclosure could claim where that disclosure had been made not whilst employed by his current employer but whilst employed by a previous employer. It was held that the wording of the statute appeared to permit such a claim, supported by a purposive approach seeking to ensure proper protection for the employee, and there was no sufficient contrary implication to construe the statute otherwise.


 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. This appeal concerns a single issue of law upon which there is as yet no authority. It concerns the scope of the protection to be given to individuals who make disclosures which there is a public interest to hear. The central issue of law is whether a Claimant can claim under Section 47B of the Employment Rights Act 1996 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 nor worker of that employer.

The Facts

2. The parties agreed facts for the purposes of a hearing before Employment Judge Sigsworth at the London Central Employment Tribunal on 22 December 2008. They are set out at paragraph 2 of his decision. For the purpose of this judgment it is necessary only to summarise them briefly.
3. The Claimant had a long and senior career in operational management in the petro-chemical industry. He was employed by Petrotechnics from February 2006 until 4 June 2008. Petrotechnics oversaw and evaluated safety processes and safety operations for its clients, who included B.P. The Claimant alleged that whilst employed by Petrotechnics he made a series of protected disclosures to two senior employees in B.P. about his concerns in respect of safety issues. These matters were said to be confidential to Petrotechnics, who dismissed him for gross misconduct for their disclosure. Three days later (7 June 2008) the Claimant took up an appointment as a consultant to B.P. (for whom he had worked as employee for over 25 years prior to joining Petrotechnics). Whilst he was in discussions with another B.P. manager, Mr Chappell, about a second and possibly a third consultancy engagement, the latter told him that B.P. was no longer prepared to engage him at all. The reason given was that Mr Chappell had been told by Petrotechnics managers that they had dismissed the Claimant for gross misconduct for disclosing Petrotechnics' confidential information.

The Law

4. The protection against detriment on the ground of making a protected disclosure is conferred by Section 47B of the Employment Rights Act 1996. This provides as follows:

"(i) a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

(ii) …..this section does not apply where –

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of Part X)

(iii) For the purposes if this section…."worker", "worker's contract", "employment" and "employer" have the extended meaning given by Section 43K"

5. Section 47B(1) thus proscribes action against a worker on the ground that he has made a "protected disclosure". "Protected disclosure" is defined by Section 43A as

"…a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of Sections 43C to 43H."

6. Section 43B, under the title "disclosures qualifying for protection" defines what is a "qualifying disclosure":

"(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, …

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is likely to be deliberately concealed

(2) For the purposes of Sub-Section (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it…"

7. Section 43C provides that a qualifying disclosure is made in accordance with that Section if the disclosure is made in good faith by a worker to his employer or

"(b) where the worker reasonably believes that the relevant failure relates solely or mainly to –

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility, to that other person"

8. The statute therefore provides within its terms that the disclosure need not relate to the employer, nor to the employer's business, nor need it be made to the employer himself. The protection against a worker suffering detriment is however plainly related to his own current employment. He would not otherwise qua worker suffer a detriment. Nor would the extensive and careful provisions of Section 47B, related as they are to Section 43A, be necessary at all if Parliament had wished to protect a whistle blower more generally. It could have achieved that much more simply, by prohibiting any act by any person to cause any detriment to another where that other had drawn attention to a matter of which it was in the public interest to know.
9. I can summarise the effect of the provisions of Sections 43D to 43H. They provide for disclosures made to particular persons to be within the scope of protection.
10. In Miklaszewicz v Stolt Offshore Limited [2002] IRLR 344 a question arose as to the temporal scope of the public interest disclosure provisions in the Employment Rights Act 1996. Mr Miklaszewicz worked for Stolt in 1993, when he was dismissed for contacting the Inspector of Taxes to complain about his employer attempting to evade tax. He was dismissed for that. He continued to work in the oil industry, and as a result of various transfers of undertaking found himself once again employed by Stolt in 1999. Whereas in 1993 there had been no statutory provisions specifically protecting him from the consequences of making a public interest disclosure, by 1999 there were. In September 2000 he was again dismissed by the company. The ground was said to be redundancy, but Mr Miklaszewicz claimed that the real reason was the disclosure he had made to the Inland Revenue in 1993. He contended that this was a "protected disclosure" and the dismissal was thus automatically unfair in accordance with Section 103A of the Employment Rights Act 1996 as amended.
11. An Employment Tribunal dismissed Mr Miklaszewicz's complaint on the ground that there was a presumption against a statute being construed as having retrospective effect. The Employment Appeal Tribunal allowed the appeal. On further appeal, the Court of Session upheld the decision of the Employment Appeal Tribunal. The reasoning is contained at paragraphs 19 and 20 of the judgment of Lord Nimmo-Smith. The point of time which has greatest significance for the purposes of the legislation is that at which the employer dismisses the employee (so, by parity of reasoning, the time at which he subjects him to a detriment, where it is detriment short of dismissal about which complaint is made). Thus an event which had taken place in the past might be relevant for the purpose of establishing that a dismissal had been unfair. Miss Beale, for the employee, drew support from the observations of Lord Nimmo-Smith (paragraph 19) and the purposive approach he adopted to the construction of the relevant statutory provisions:

"It would appear to us to be consistent with the main purpose of the 1998 Act to approach the matter in this way, as to construe it in the manner suggested by Counsel for the appellants would be to deprive employees…of an important protection which it was thought appropriate to confer on "whistle blowers" in the public interest"

12. In Hibbins v Hesters Way Neighbourhood Project [2009] ICR 319 a teacher read a report in a local newspaper from which she identified a suspect in a rape case as a student she had interviewed for a course run by her employer. She passed information about him to the police. She claimed that in consequence she was branded a trouble maker by her employer because her disclosures to the police had involved the employer in a criminal matter, and claimed that the disclosures were protected disclosures made in accordance with Section 43H. An employment Tribunal dismissed her complaint on the ground that the disclosure of information revealed no wrongdoing on the part of the employer and was not "a qualifying disclosure". Allowing the appeal, the Appeal Tribunal pointed out that there was no limitation whatsoever in the statute on the people or entities whose wrongdoings could be the subject of qualifying disclosures. A wrongdoer was simply identified as a "person".
13. Of the four reasons which the Appeal tribunal gave as supporting its view, the third was relied upon by the employee here: at paragraph 18 –

"Third, the legalisation has to be construed in the light of its aim of encouraging responsible whistle blowing."

14. In Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303, paragraph 33, Wilkie J. (giving the judgment of this Appeal Tribunal) said in a whistle blowing case:

"Where statutory provisions are explicitly for the purpose of providing protection from discrimination or victimisation it is appropriate to construe those provisions so far as one properly can to provide protection rather than deny it."

15. In Woodward v Abbey National Plc (No 1) [2006] ICR 1436, paragraph 68, a very similar approach was taken. Woodward is Court of Appeal authority. It considered whether a claimant could claim protection from an alleged detriment which had occurred after the termination of her employment. Her appeal against the earlier dismissal of her claim by the lower courts was allowed. The nub of the case so far as relevant to the present comes from paragraphs 66 to 68 in the judgment of Ward LJ. At 67, he said this:

"…the employer points out that the rights not to suffer detriment conferred by Part V manifestly relate to the retaliatory action by the employer being taken because of something done in the course of the employment, for example attending for jury service, taking maternity leave etc. That may be a good argument for saying that the action of the employee which provokes the retaliation must be some activity during the currency of the employment but it does not follow that the retaliation must likewise be so confined. There is no sensible reason for so confining it. (I emphasise "may be a good argument" because I would not want it to be thought that I am excluding a remedy for blowing the whistle after the contract of employment has terminated: this is an issue which does not arise on the facts of this case).

68. If one seeks for the underlying purpose of Section 47B one has to start with the Act which introduced the measure. The public interest, which led to the demand for this Act to protect individuals who make certain disclosures of information in the public interest and to give them an action in respect of that victimisation would surely be sold short by allowing the former employer to victimise his former employee with impunity. It simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can. If it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted."

16. None of these cases, nor the affirmation of Miklaszewicz in the Court of Session, directly answers the question posed in the present case. But all are unanimous in their view that the legislation should if possible be construed so as to advance the purpose of the legislation, which is seen as to provide protection for those who "blow the whistle" in the public interest. This is entirely consistent with the long title of the Act which inserted these provisions in the Employment Rights Act 1996: the Public Interest Disclosure Act 1998. It is concerned entirely with protection, and the prevention of victimisation:

"An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes."

17. I accept therefore that, insofar as there is room for it, the statute should be construed (as case-law suggests) so as to advance this purpose.

The Decision of the Employment Judge

18. The Employment Judge had two issues before him. The first submission made by the employee was that he did not have to be a worker at any time other than that at which he suffered detriment: he did not need to be a worker of the employer concerned, nor any employer, when he made his disclosure. The second was that if he had to be a worker at the time, he could be a worker of any employer and not just the employer who (later) caused him to suffer detriment.
19. At paragraph 18 of its decision, the Judge resolved the first of these submissions adverse to the employee (and the employee cross-appeals that decision). It decided that the worker/employee concerned had to be in employment at the date of the relevant disclosure. It did so by focussing upon the wording – "a qualifying disclosure is made" and that which refers to a qualifying disclosure being one which "in the reasonable belief of the worker making the disclosure". Both of these expressions are couched in a tense appropriate to the maker of the disclosure being a worker at the time, and not (for example) being expressed in the past tense as would be appropriate if worker status had to be established only at the time of detriment. To conclude otherwise, said the Employment Judge, would be to distort the meaning of sections 43A and 43B.
20. As to the second submission, the Employment Judge correctly noted that the statute did not provide directly either that the employer needed to be one and the same at both the times of disclosure and detriment, or that he did not have to be. He noted:

"The [employer] also argues that if the first employer does not have to be the same person as the second employer, then illogical and incoherent consequences would follow. I do not agree. It is logical and consistent for legislation introduced to protect employees/workers who whistleblow in the public interest, to apply only to protect workers/employees who blow the whistle, and not to others who are not in employment. Victimisation by prospective employers is not covered, and there is a requirement to be actually employed by the victimiser to benefit from the protection. This is an odd omission by the legislature, perhaps, but it does not necessarily mean in itself that the employer at both material dates (disclosure and detriment/dismissal) must be one and the same. Even if the two employments are in no way connected…what must be borne in mind is the purpose of the legislation – which is to protect employees and workers, whoever they work for. Further, the Act expressly provides for disclosures to be made to someone other than the employer in certain circumstances – breaking the link the [employer] contends for of the employer receiving the disclosure being the same employer causing the detriment/dismissal. The case of Woodward provides a different type of example where this link of actual employment at the date both of disclosure and detriment was broken.

I therefore accept the [employee's] argument that combining the giving of a natural and ordinary meaning to the words of a statute with a purposive interpretation results in a conclusion that the Claimant can claim the protection of the legislation in the circumstances of this case."

Submissions

21. Mr. Fodder, for the Appellant employer, contended that "worker" had to be construed in relation to an employer, and that employer must necessarily be the same for the worker referred to in section 43A as it was for the worker referred to in section 47B. The two sections had to be read together. The Employment Judge had refused to do this.
22. If the "worker" referred to in section 43A could be the worker of any employer, and the employer subsequently subjecting the worker concerned to a detriment was not that employer, then there was such a surprising gap in the protection conferred by the legislation as to call the hypothesis in question. This was because the subsequent employer would first have to enter into a contract under which the worker was employed – and if he declined to do so, on the basis that the prospective employee had previously blown the whistle on someone else's practices, the would-be employee would have no remedy. Contrast the protection given by the discrimination statutes, urged Mr. Fodder. All provided that an employer could not discriminate against someone in the arrangements they made for taking him into employment, or by not employing him. The reason for the omission of providing that the failure to engage a worker on the ground that he had been responsible for a protected disclosure in an earlier employment was obvious: it was simply that the draftsman of the statute never contemplated it, because he had drafted the Act on the basis that the employee would be in one and the same employment both when the disclosure was made and the detriment (or dismissal) suffered. He did not need to provide for that which would never occur.
23. Further, there was no good policy reason for a construction such as the Employment Judge had favoured: it was not obvious why "workers" represented a category of people who deserved protection against future detriment because they had blown the whistle, as opposed to people more generally; and there was every reason to think that the favoured construction would cause such difficulty for employers that it could not have been intended. That was because it would be a nightmare (as he put it) for a later employer to determine if a worker had made an earlier disclosure which was a qualifying one and hence protected, when there was none of the mutual relationship of employer/employee which would facilitate it. It might indeed cause employers to be reluctant to take on staff they thought might have been whistle-blowers, for they would be exposed potentially to claims they could not predict.
24. If the employee's construction was correct, then he could claim protection in respect of a disclosure made in respect of his employment in the security services from a later employer, although (see section 193 Employment Rights Act 1996) he could not assert such a right directly against his security service employer.
25. He argued that there would be consequential interpretations of other rights in Part IVA of the 1996 Act (in sections 45 – 47) which could not have been intended.
26. As to the cross-appeal, the Employment Judge was right. His reasoning could be supported by reference to the statutory references to a qualifying disclosure having to be made "to his employer" (s. 43C(1)(a)) or to a person other than his employer (s 43C(2)) which clearly contemplate that at the time of disclosure the person making it has an employer.
27. Miss Beale, for Mr.Elstone, first advanced the cross-appeal, arguing that it was necessary only for a Claimant to have been a worker in someone's employment for the statute to bite. I shall not deal with this further: it seems plain to me that the focus must be on the statutory provisions. The plain wording of those identifies a worker as making the disclosure, not "a person", and contemplates that at the time of the disclosure there is someone who is an employer. I accept both the Employment Judge's reasoning and the further support for it which Mr. Fodder derives from the legislation.
28. On the main appeal, she founded herself straightforwardly on the statutory wording. That was the starting point. All the case-law supported a purposive approach, which argued that the definition of a qualifying disclosure should encompass one made by someone who was a worker, whatever his then employer, at the time he made the disclosure rather than more narrowly reading words in to the statute which would require him to be a worker in the employment of the same employer who caused him detriment.
29. She, too, pointed to allegedly bizarre results if her preferred interpretation were not correct. An employee who blew the whistle on a employer closely linked to, and perhaps even part of the same group as but legally distinct from his own employer would have no protection if his own employer penalised him for it.
30. She supported these arguments by a somewhat unnecessary appeal to Strasbourg authority, to make the point that freedom of speech was an essential right and would be unlawfully interfered with if a person could not draw attention to wrongdoing committed by those with whom he had close relations and on whose economic power he nonetheless depended, such that this too argued for an expansive rather than limiting approach to the scope of the sections. Although entirely consistent with her main arguments, and supportive of them, the Employment Judge had not been referred to any of this case-law. Nonetheless, Miss Beale (rightly) said that the argument was in essence that which had been advanced before the Employment Judge, and therefore she should be permitted to refer to and rely on the cases she mentioned: Steel v Morris [2005] 41 EHRR 22; Guja v Moldova (12. February 2008, Application No. 14277/04, BAILII: [2008] ECHR 144; ); Kudeshkina v Russia (14 September 2009, Application no 29492/05, BAILII: [2009] ECHR 360); Rommelfanger v Federal Republic of Germany (1989) 62 D & R 151; Thorgierson v Iceland [1992] 14 EHRR 843. All were interesting. None shone any direct light on the central issue in the case, that of statutory interpretation, and it is difficult to see what they could have added to the domestic authorities discussed at the start of this judgment. The closest was Guja v Moldova, where the Court found a breach of Article 10 of the Convention in circumstances where a civil servant had leaked an internal document and been dismissed for his breach of loyalty to the state by which he was employed. The Court spoke in both it, and Kudeshkina (which concerned the dismissal from post of a judge), of the chilling effect which dismissal for breach of an employer's confidences (where it could be in the public interest for them to be broken) would have on the ability of others to speak out, and which would thus disproportionately fetter that freedom of speech which it was essential for the state to guarantee in a modern pluralist democracy. These cases were, however, unhelpful in a case in which the issue is not whether the law should recognise the right of a citizen who is an employee to speak out on matters of public concern without fear of penalty – it does – but what the precise boundaries of that right are, as laid down by Parliament. There was no contention that the provisions of the Employment Rights Act 1996 as derived from the Public Interest Disclosure Act 1998 was an inadequate performance of the State's positive obligations to protect freedom of speech within the scope of Article 10. It was, rather, that the interpretative obligation to advance freedom of expression applied to the Employment Judge, and favoured an expansive and purposive approach.

Conclusions

31. As in any case where statutory interpretation is called for, the starting point is the words of the statute. If applied literally here they:

a) provide (section 47B) that the worker will not be subject to a detriment by any act by his employer, but.

b) In sections 43A and 43B define a qualifying disclosure as one which is made "by a worker". There is no express requirement that the worker be in any particular employment (let alone that of the employer referred to in section 47B), just as there is now established to be no requirement that a qualifying disclosure be about his present employer, or made to his present employer, or made at any particular time.

32. Accordingly, the wording of the statute appears to provide that the act from which a current worker is protected is one which relates to his present employment, and affects only his present employment: but that that which inspires the hostile act by his current employer may (on the wording of the statute) be related to any earlier time at which the current worker was then of worker status, whoever was his employer.
33. This being open to the courts on a straightforward reading of the words of the statute, the next question is whether there is any reason to suppose that there is an implied restriction of the expression "worker" and "employer" in sections 43A and 43B to that which is work under the same contract and for the same employer as that referred to in section 47B.
34. The answer to this must be that there is no such implied restriction. This is for two reasons. First, the courts are obliged to take a purposive approach to the statutory provisions, so as to advance the protection of whistle-blowers from later retribution by an employer. It is protection, rather than the identity of the employer, which is central to this. Compelling examples of the practical repercussions of the two rival contentions are afforded by asking what the legal position would be where A is employed by B when he whistle-blows, but B is part of a group of companies into whose employment A comes, and which then takes retaliatory action; or, again, where A is employed by B at the time he makes what would otherwise be a qualifying disclosure, but his contract is transferred to C, D or E whether by a transfer of undertakings to C or by the creation of a subsidiary (D) or a contracted-out supplier (E). C, D or E (as the case may be) subjects A to a detriment because of that disclosure. On the employee's submissions, A is protected. On the employer's, he is not. The former is within the policy – indeed, given the long title, the express policy - of the statute. The latter is contrary to it.
35. The arguments tending the other way are on analysis either unlikely to occur as a matter of practicality, or unconvincing. Thus the vision of an employer being concerned about whether he should employ workers because they might have been whistle-blowers and he might thereafter be accused by them of taking action against him for that reason is unreal. A claimant for an order under the public interest disclosure provisions has to persuade a tribunal that action was against him on the ground that he made such a disclosure. This is a causation point. It is difficult to see any reason why an employer who was totally removed from the subject of a disclosure should wish to take action because of it. It must be well appreciated that in such a case tribunals are so unlikely to find that the disclosure is the cause of the treatment which the employee/worker finds adverse that it is not worth pursuing the allegation (and it may be costly to do so). If, to the contrary, there is a tenable argument that the adverse treatment is causally linked to the disclosure this is highly likely to be because the employer has some interest in it, or it is (as in the examples given above) "uncomfortably close to home". Yet it is precisely this sort of causal link which it is the policy of the Act to recognise as a sufficient reason for giving statutory protection to the worker concerned.
36. Arguments about other situations in which the actions of employers may give rise to automatically unfair dismissal, or to rights of complaint by those who work for them, do not advance the case for the employer. Sections 43A and 47A derived from a statute specifically passed to deal with a specific problem; the other provisions have very different origins. The similarities which cause some provisions to be grouped together in the Employment Rights Act as they are is superficial, and not significant.
37. It is true that the statute does not prohibit action against a whistleblower should he be recognised as one when an applicant for employment, as it might have done. This is in my view insufficient a basis to support an implication that when the statute refers to a whistleblower being a worker it necessarily was adding in unwritten words such as "of the employer who later subjects him to detriment". This may be a lacuna, as the Employment Judge suggested. It may, perhaps, be a reflection of the causal probabilities referred to at paragraph 35 above. But remembering, as I do, that the issue is to determine what Parliament intended to achieve by the words it used in the light of the policy it expressed, it is plain that it intended limits to the right to sue. The more appropriate reading of the absence of this protection is simply that the legislature specified particular protections: it did not go further. After all, on both parties' cases, the protection did not extend this far: the absence of a provision that Parliament might have been inserted, which was unlikely to be of central practical importance if it had been, does not on analysis assist with the limits to which other protections conferred by the words used actually extend.
38. It follows that the appeal must be dismissed. This renders the cross-appeal academic, but for the reasons given at paragraph 27 above I dismiss it too.