Roberts v Wilsons Solicitors llp

Under section 49 of the Employment Rights Act 1996, post-termination financial loss may be recoverable for earlier unlawful whistleblowing detriments, even where an LLP member was lawfully expelled. The relevant question is whether the loss is attributable to the unlawful conduct. That is a question of fact and judgment, assessed on the evidence. “Attributable” does not require proximate cause or a strict “but for” test. A later termination or expulsion does not automatically break the connection with earlier detriments. The tribunal must consider the nature and gravity of the infringement, the loss attributable to it, any intervening conduct and what compensation is just and equitable.

Mr Roberts, a solicitor and member of Wilsons Solicitors LLP, brought a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996. He alleged that protected disclosures led to his removal from management roles, the making of his position untenable, his withdrawal from work and his later expulsion from the LLP.

The Employment Tribunal struck out his claim for losses flowing from the termination of his membership, treating Flanagan v Liontrust Investment Partners LLP [2015] EWHC 71 (Ch) as an insurmountable obstacle. The appeal concerned whether the asserted post-termination losses were legally incapable of being attributable to the earlier alleged unlawful detriments.

1. Appeal allowed. The Employment Tribunal had erred in striking out the claim for post-termination financial losses without hearing evidence or making findings of fact.
2. Section 49(2)(b) of the Employment Rights Act 1996 requires regard to loss attributable to the act or failure to act infringing the worker’s rights. “Attributable” is ordinary language capable of flexible, broad common-sense application. It does not impose a requirement of proximate causation. Proximity is relevant, but is not decisive.
3. Nor does section 49(3) establish a strict “but for” test. It concerns the quantification of loss and identifies losses to be included. The tribunal must determine, as a matter of fact and judgment, whether a particular loss is attributable to the unlawful act, to another matter, or to both, and to what extent.
4. The legal ineffectiveness of Mr Roberts’s purported resignation under LLP law did not determine whether later financial loss was attributable to earlier unlawful detriments. A claimant may prove that unlawful victimisation made membership untenable, caused withdrawal from work and led to expulsion. Whether the claimant’s conduct was repudiatory, whether the LLP was entitled to treat it as terminating the relationship, and whether the later termination obliterated earlier wrongs were factual questions.
5. Prison Service v Beart No 2 [2005] ICR 1206 did not establish that a lawful later expulsion necessarily broke the chain of attribution. The passage relied on was expressly treated as not forming part of that decision’s ratio. Ahsan v The Labour Party UKEAT/0211/10/ZT was fact-sensitive and did not compel a different result.
6. Section 49(6) created no incompatibility. Injury to feelings could be recovered for earlier detriments, but not for termination where termination was the sole detriment complained of.
7. The claim was remitted to proceed on the basis that, if liability were established, the tribunal would determine whether the statutory requirements were met and what compensation was just and equitable.

• Employment Tribunal: Employment Judge Salter struck out the claim for losses flowing from the purported termination of LLP membership, following Flanagan v Liontrust Investment Partners LLP [2015] EWHC 71 (Ch).
• Employment Appeal Tribunal: Appeal allowed. The strike-out of the post-termination loss claim was set aside and the issue was left for determination on the evidence.