This is a case from the Employment Appeal Tribunal in relation to whistleblowing. The employee in this case had a long career with BP but moved to Petrotechnics in 2006.
His job at Petrotechnics involved evaluating safety processes for clients, including BP. While at Petrotechnics, he made a protected disclosure about safety processes to BP managers. Petrotechnics found out about this and dismissed the employee for disclosing confidential information to BP.
The employee then began working as a consultant at BP, but was not offered further consultancy agreements after the first agreement, because BP became aware that he had been dismissed from Petrotechnics for disclosing confidential information.
Detriment
The employee brought a claim against BP because it had subjected him to a detriment due to his making a protected disclosure to BP while employed by a different employer (Petrotechnics). He argued it did not matter that he was not an employee of BP at the time that he made the disclosure.
The Employment Appeal Tribunal (EAT) agreed. It stated that while an individual must be an employee or a worker at the time when they make the protected disclosure, they need not be a worker or employee of the same employer that subjects them to the detriment.
The EAT considered the purpose of the whistleblowing legislation and found the central issue was the protection of workers rather than the identity of employers. Therefore a worker’s protection should not be lost simply because they have changed employers.
Key points
- Protected disclosures do not need to be made to current employers, be about the current employer or be made at any particular time. But at the time when the disclosure is made, the individual must be an employee or worker.
- The EAT stated that it is unlikely that employers would be caught out by employees having made disclosures while in previous employment that the new employer did not know about, as it would be difficult to prove causation in those cases – in other words, that the detriment was caused by the protected disclosure.
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What you should do
- If you become aware that an employee or worker has made a protected disclosure before coming into your employment, you should not subject them to a detriment or dismiss them for this reason.
by Richard Ryan, associate, Helen Ward, associate, and Tori O’Neill, trainee solicitor, Addleshaw Goddard
