Whistleblowing – expanding protection to anticipated protected disclosures
Jennifer Danvers
Rachel Barrett, instructed by Slater & Gordon, successfully argued at first instance that it is unlawful to subject an individual to a detriment on the grounds that the employer perceived them to be considering making a protected disclosure. Jennifer Danvers considers the judgment and potential ramifications.
Theissue
Discriminationlawyers will be very familiar with the provisions of s.27 Equality Act 2010,under which it is not only unlawful for an individual to be subjected to adetriment because an employee hasdone a protected act, but alsoif an employer believes that an employee ‘has done, or may do, aprotected act’.
Thewording of s.27 contrasts with that of s.47B Employment Rights Act 1996 which,on the face of it, only provides the right for workers not to be subjected toany detriment on the ground that the worker has made a protecteddisclosure.
Whatthen for potential whistleblowers who are caught by employers in thepreparatory steps of making a protected disclosure or are thought likely to doso and subjected to a detriment as a result?
Thedecision
In Bilsbrough v Berry Marketing Services Ltd (ET/1401692/2018) the Southampton Employment Tribunal found that the Claimant had been suspended largely because the Respondent believed that he had been researching ways to make a protected disclosure to the ICO.
RachelBarrett of Cloisters argued, and the Tribunal accepted, that to give effect tothe Claimant’s right to freedom of expression under Article 10 ECHR, s.47B ands.103A ERA 1996 have to be read so as to include the situation where anemployer subjects a worker to a detriment or dismisses them on the ground thatthe employer believed that a worker had been considering making aprotected disclosure.
TheTribunal, chaired by EJ Dawson, concluded that in this case the Claimant’sArticle 10 rights were engaged by him researching how to make a protecteddisclosure and that the Tribunal was obliged to read in to s.47B and s.103A inorder to give effect to that right.
The Tribunal noted that: “The Claimant’s counsel advances a powerful argument that without such an interpretation, effective protection in the context of whistleblowing is not given… [I]f employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making on public interest disclosure.”
Althoughonly a non-binding first-instance judgment, this decision is carefully reasoned. It should provide a note of caution for thoseadvising employer clients in similar situations and can serve as a useful road-mapfor claimants bringing claims on this basis.