Woodward v Abbey National Plc

The statutory protection of whistleblowers against detriment extends to retaliatory acts committed by a former employer after the employment contract has ended. The expression “in employment” in Part V of the Employment Rights Act 1996 can mean within the employment relationship, which may survive termination.

Parliament cannot sensibly have intended to protect a worker from retaliation before termination while permitting the same retaliation afterwards. The definition of “worker” is capable of including a former worker. The Court of Appeal may decline to follow its own earlier decision where that decision cannot stand with a subsequent decision of the House of Lords.

The appellant, a former employee of Abbey National Plc, alleged that she had suffered detriments after her employment ended because she had made protected disclosures. The alleged detriments included failures to provide a reference, interference with employment opportunities and failures to consider her for further work. The allegations remained uninvestigated and were assumed to be true only for the preliminary jurisdictional issue.

The Employment Tribunal held that it lacked jurisdiction because the alleged acts occurred after termination. The Employment Appeal Tribunal dismissed the appeal in a decision reported at [2005] ICR 1750, holding that it was bound by Fadipe v Reed Nursing Personnel [2001] EWCA 1885.

The central issue was whether Fadipe could stand with the House of Lords’ later decision in Rhys-Harper v Relaxion Group Plc [2003] UKHL 33, and whether section 47B of the Employment Rights Act 1996 protects a former worker against post-termination detriment.

1. Appeal allowed. The Employment Tribunal and Employment Appeal Tribunal had been bound to follow Fadipe v Reed Nursing Personnel [2001] EWCA 1885. The Court of Appeal was not bound to do so because Fadipe could not stand with Rhys-Harper v Relaxion Group Plc [2003] UKHL 33. The matter was remitted to the Employment Tribunal for determination.

2. Under Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718, the Court of Appeal may examine and depart from one of its earlier decisions where, although not expressly overruled, that decision cannot stand with a subsequent House of Lords decision. Fadipe’s ratio confined protection under section 44 of the Employment Rights Act 1996 to detriment inflicted during employment. That reasoning was inconsistent with the House of Lords’ treatment of the employment relationship in Rhys-Harper.

3. Section 47B protects a worker against post-termination retaliation for a protected disclosure. The phrase “detriment in employment” is ambiguous. In light of Rhys-Harper, it can refer to detriment within the employment relationship, which may continue after the contract ends. Section 230 also defines a worker in terms capable of including a person who formerly worked under the contract.

4. The purpose of the whistleblowing legislation reinforced that construction. It would be irrational and capricious to protect a worker from retaliation while the contract subsisted but allow the former employer to retaliate with impunity afterwards. Although activities protected elsewhere in Part V often occur during employment, it does not follow that the retaliatory act must also occur during employment.

5. The court did not determine whether a disclosure first made after termination would qualify. Nor did it prescribe the exact test for deciding whether particular post-termination conduct was sufficiently connected with the employment relationship. Those matters, and whether the alleged facts justified a remedy, remained for later determination.

1. Court of Appeal (Civil Division): Allowed the appeal in [2006] EWCA Civ 822, declined to follow Fadipe and remitted the protected-disclosure claim to the Employment Tribunal.
2. Employment Appeal Tribunal: Dismissed the appeal on 20 July 2005, holding that it was bound by Fadipe. Its decision was reported at [2005] ICR 1750.
3. Employment Tribunal: By a decision promulgated on 23 February 2005, held as a preliminary issue that it lacked jurisdiction because all alleged detriments occurred after the appellant’s employment ended.