Onyango v Berkeley (trading as Berkeley Solicitors)

A complaint under section 47B of the Employment Rights Act 1996 may rely on a protected disclosure made after employment has ended, provided the disclosure leads to a subsequent detriment. The statutory wording imposes no requirement that the disclosure occur during employment. The references in sections 43A to 43C to the present tense concern the quality of the disclosure when made, rather than its timing. A post-termination detriment may therefore complete the statutory tort. The earlier approach in Fadipe v Reed Nursing Personnel could no longer be followed after Rhys-Harper v Relaxion Group Plc and Woodward v Abbey National.

The claimant had been employed by the respondent until 15 June 2010. He relied on a letter before claim and a report to the Legal Complaints Service, both made after termination, as protected disclosures. He alleged that those disclosures led to detriments, including allegations of forgery and dishonesty and investigation by the Solicitors Regulation Authority.

The Employment Tribunal dismissed the section 47B complaint on the basis that a protected disclosure could not be made after termination. The claimant appealed on that issue. The appeal concerned whether section 47B permitted reliance on a post-termination protected disclosure.

1. Appeal allowed. The Employment Tribunal had wrongly declined jurisdiction to consider the section 47B complaint. The matter was remitted to a differently constituted Employment Tribunal for determination on its merits.
2. A section 47B complaint may rely on post-termination detriment. The detriment must occur after, and be causatively linked to, the protected disclosure. Since the statute permits a post-termination detriment, there was no warrant for limiting the disclosure itself to the period of employment.
3. The definitions of worker and employer in section 230 of the Employment Rights Act 1996 encompass parties who are or have ceased to be in the relevant contractual relationship. That construction supports the availability of a post-termination section 47B complaint.
4. The use of the present tense in sections 43A to 43C does not impose a temporal limitation. Those provisions address the quality of the disclosure when made, not whether it was made during employment.
5. The approach in Fadipe v Reed Nursing Personnel was no longer to be followed in light of Rhys-Harper v Relaxion Group Plc and Woodward v Abbey National. The substantive question whether the alleged disclosures caused detriment remained for the Employment Tribunal.

The case was remitted to a different Tribunal in the interests of the perception of fairness. That direction did not reflect adversely on the professionalism of the original Tribunal.

1. Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s decision and remitted the section 47B complaint for determination on its merits by a different Tribunal.
2. Employment Tribunal: dismissed the section 47B complaint on the ground that the protected disclosure had been made after termination. Its separate dismissal of the complaints of direct race discrimination, harassment and victimisation was not appealed.