BP plc v Elstone

Section 47B of the Employment Rights Act 1996 protects a current worker from detriment because of a protected disclosure made while working for a different employer. The disclosure must have been made by a worker, but the statute does not require the worker to have been employed by the same employer who later imposed the detriment. The statutory wording is capable of that construction and must be read purposively to advance protection for whistle-blowers. The absence of protection against refusal to employ a whistle-blower does not justify adding words that Parliament did not use.

The claimant made alleged protected disclosures to BP while employed by Petrotechnics. Petrotechnics dismissed him, and BP later declined to engage him as a consultant after learning of the disclosures and their alleged consequences. The Employment Tribunal held that the claimant had to be a worker when making the disclosure, but that the relevant employer at the time of disclosure need not be the same employer who later subjected him to detriment. BP appealed, and the claimant cross-appealed the first conclusion. The central issue was whether section 47B applied where the disclosure was made during earlier employment with another employer.

1. Appeal and cross-appeal dismissed. The claimant could pursue a section 47B detriment complaint based on a protected disclosure made while he was working for another employer. The cross-appeal concerning worker status at the time of disclosure was dismissed, although it became academic once the main appeal failed.
2. The statutory starting point was the language of sections 43A, 43B and 47B of the Employment Rights Act 1996. Section 47B refers to detriment by the worker’s employer, whereas sections 43A and 43B define a protected or qualifying disclosure as one made by a worker. They contain no express requirement that the worker’s employer at the time of disclosure must be the same employer who later caused the detriment.
3. The expression “worker” nevertheless requires the claimant to have worker status when making the disclosure. The wording of sections 43A, 43B and 43C, including references to the worker making the disclosure and to disclosure to his employer, supports that conclusion.
4. The absence of an express same-employer requirement was not a reason to imply one. The legislation arose from the policy of protecting responsible whistle-blowing and preventing victimisation. That policy would be undermined where employment moved within a corporate group, following a transfer of undertakings, or to a subsidiary or contractor, and the new employer retaliated because of the earlier disclosure.
5. Concerns about uncertainty for later employers and the absence of protection against refusal to employ a whistle-blower did not justify restricting the protection. A claimant must still prove causation: the detriment must have been imposed on the ground that the worker made a protected disclosure.

• Employment Tribunal: held that the claimant had to be a worker when making the disclosure, but that the employer at the time of disclosure need not be the same employer who later subjected him to detriment.
• Employment Appeal Tribunal: dismissed BP’s appeal and the claimant’s cross-appeal.