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Can a disclosure made after employment ends be protected?

Posted on 25th March 2013
Case law

'Yes' says the Employment Appeal Tribunal.

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Julie Temple Julie
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a disclosure made after employment has ended could be a protected disclosure

Onyango v Berkeley (t/a Berkeley Solicitors)

The facts

The claimant (Mr O) was a solicitor employed by the respondent (Mr B) in his solicitors firm between March 2009 and 15 June 2010. After his employment ended, Mr O wrote a letter before claim to Mr B and made a report to the Legal Complaints Service (LCS) about Mr B.

Mr B then raised allegations of forgery and dishonesty against Mr O with the Solicitors Regulation Authority (SRA) who began an investigation.

Mr O brought discrimination claims against Mr B and a whistle-blowing claim arguing that he had been subjected to detrimental treatment (the allegations raised by Mr B with the SRA) because of his letter before claim and his report to the LSC.  Mr O argued both were "protected disclosures" within the meaning of the Employment Rights Act 1996.  Mr B disagreed because the disclosures were made after Mr O's employment had ended.

The Employment Tribunal agreed with Mr B and dismissed Mr O's discrimination claims deciding that a disclosure made after employment has ended could not be a protected disclosure. Mr O appealed the last point to the EAT.

The decision

The EAT had "no hesitation" in holding that a disclosure made after employment has ended could be a protected disclosure.

In reaching its decision, the EAT considered a previous judgment which established that a detriment occurring after employment has ended could be protected. The EAT could, therefore, see no reason for limiting a disclosure to the period of employment.

The EAT also considered that the wording and purpose of the relevant legal provisions (sections 47B and 230 of the Employment Rights Act 1996) supported its decision as the whistle-blowing provisions give protection to workers - the definition in section 230 of the Employment Rights Act includes those who are still working or who have ceased working.

In practice

This decision confirms that a qualifying disclosure can be protected if it is made during employment with the respondent or after the employment has ceased.

This decision is likely to impact upon the effectiveness of 'gagging clauses' in settlement agreements since post-termination disclosures can now be protected. Such clauses could be potentially unenforceable in the light of this decision.

Employers should tread carefully to avoid causing detriment to a former employee who has made a protected disclosure, as they could find themselves on the receiving end of a whistle-blowing claim for, say, refusing to provide an employment reference. 

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