Woodward v Abbey National plc (No 1)

The Court of Appeal held that the earlier Court of Appeal decision in Fadipe v Reed Nursing Personnel could not stand consistently with the House of Lords' decision in Rhys-Harper v Relaxion Group Plc. The court decided that section 47B of the Employment Rights Act 1996, as introduced by the Public Interest Disclosure Act 1998, is ambiguous on its face as to whether protection against detriment extends beyond the termination of the contract of employment.

Applying the principles in Rhys-Harper, the court concluded that a worker may, in suitable cases, bring a complaint under s.47B in respect of a detriment done after the employment has ended if there is a substantive connection between the detriment and the employment relationship. The appeal was allowed and the case was remitted to the Employment Tribunal for determination of the factual and legal issues.

Background and facts: The appellant, Mrs Diana Woodward, had been employed by Abbey National Treasury Services until redundancy in November 1994. She settled earlier sex discrimination claims without admission of liability. In January 2003 she brought a complaint to the Employment Tribunal including a victimisation claim under s.47B of the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998), alleging protected disclosures about breaches of legal obligations and that she suffered detriments after her employment ended (for example, failures to provide references and losses of job opportunities).

Procedural posture: The Employment Tribunal decided as a preliminary issue that it had no jurisdiction because the complained-of acts occurred after employment had terminated. The Employment Appeal Tribunal dismissed her appeal (reported at [2005] ICR 1750). Mrs Woodward obtained permission to appeal to the Court of Appeal.

Nature of the application and issues framed: The appeal raised whether s.47B and related provisions of the Employment Rights Act permit a worker to complain of detriment done after termination of employment; whether the Court of Appeal decision in Fadipe (which denied post-termination jurisdiction under the equivalent health and safety provision) remained binding; and whether Rhys-Harper, in which the House of Lords read discrimination statutes to protect ex-employees in appropriate circumstances, required a different result.

Court's reasoning and disposition: The court reviewed Young v Bristol Aeroplane and the permissible circumstances in which the Court of Appeal may depart from its earlier decisions. After analysing the speeches in Rhys-Harper, the court concluded that the reasoning in Fadipe was inconsistent with the House of Lords' approach. The Court of Appeal therefore declined to follow Fadipe and held that s.47B can, depending on context and the existence of a substantive connection between the detriment and the employment relationship, cover post-termination detriments. The court did not attempt to formulate the precise test to be applied; instead it remitted the matter to the Employment Tribunal to determine jurisdiction and, if appropriate, the merits on the factual evidence.

Subsidiary findings and remarks: The court emphasised that it had not decided factual questions or the exact legal test to be applied to determine when a post-termination act is sufficiently connected to the employment relationship; those matters were left to the Employment Tribunal.

Appeal allowed. The Court of Appeal concluded that Fadipe was inconsistent with the House of Lords' decision in Rhys-Harper and that s.47B of the Employment Rights Act 1996 can, in appropriate circumstances where there is a substantive connection between the detriment complained of and the employment relationship, protect a worker against detriment suffered after the contract of employment has terminated. The case was remitted to the Employment Tribunal for further determination.

Appeal from the Employment Appeal Tribunal (Burton J, the EAT having dismissed the appellant's appeal against the Employment Tribunal's preliminary ruling that it had no jurisdiction). The EAT decision is reported at [2005] ICR 1750. The Employment Tribunal issued its preliminary decision on 23 February 2005. Permission to appeal to the Court of Appeal was granted.