Onyango v Berkeley t/a Berkeley Solicitors
The claimant is a solicitor who worked for Berkeley Solicitors. Soon after leaving the firm, he wrote a letter to the employer about potentially bringing a claim. The following month, he also wrote a letter of complaint about the firm to the Legal Complaints Service. Berkeley Solicitors subsequently made allegations of forgery and dishonesty against the claimant, which were a prelude to the claimant being investigated by the Solicitors Regulatory Authority (SRA).
The claimant brought, among other claims, a whistleblowing claim, arguing that he had been subjected to a detriment by his former employer when it reported him to the SRA, which he cited as being a direct result of the complaints set out in his letter before claim and his complaint. The claimant alleged that the complaints in both of these letters constituted protected disclosures.
The first-instance tribunal dismissed the claims. In relation to whistleblowing, the tribunal found that the disclosures did not amount to protected disclosures because they had been made after the claimant’s employment had terminated. The claimant appealed to the Employment Appeal Tribunal (EAT).
The EAT was satisfied that post-termination disclosures can be relied on if they lead to detrimental treatment. This was based upon both a pure and a purposive reading of the Employment Rights Act 1996, which confers whistleblower protection on “workers”, which is defined in the text as those who are or have ceased to be in a contractual relationship.
The EAT ruled that the claimant clearly fell within the scope of this and, as detriment could arise post-termination, so too could the protected disclosure. Accordingly, the EAT concluded that both the letter before claim and subsequent letter to the Legal Complaints Service could constitute protected disclosures for the purposes of whistleblowing legislation.
The EAT upheld the appeal and sent the case back to a newly constituted tribunal to consider whether or not there had been any detrimental treatment on the facts.
This case has broadened the coverage of whistleblower protection, which accords with the current flow of the political tide to encourage and protect whistleblowers.
An employer must now be alive to the fact that an ex-employee can make a qualifying disclosure capable of whistleblower protection after he or she has left the business. In practical terms, a detriment may arise following a protected disclosure where an employee is not considered for a role at the ex-employer when re-applying to the company, and where an employer refuses to provide a reference or gives a negative reference to the ex-employee.
Employers are therefore encouraged to be alert when dealing with ex-employees, particularly where the exit was not amicable. In the context of protected disclosures, the EAT’s decision in Onyango has made it clear that out of sight does not necessarily mean out of mind.
Guy Lamb is a partner at DLA Piper
Practical guidance from XpertHR on whistleblowing