Tiplady v City of Bradford Metropolitan District Council

For whistleblower detriment protection under section 47B of the Employment Rights Act 1996, detriment is confined to the employment field. Its scope corresponds to the analogous discrimination provisions. The relevant question is the capacity in which the worker suffered the detriment, rather than simply whether the alleged wrongdoer was also the worker’s employer. The boundary is not limited to the workplace or working hours, and borderline cases require a contextual assessment. A worker who is also a resident or service user may fall outside the employment field when affected by a public authority’s exercise of its public powers. The appeal was dismissed because the tribunal’s findings that no detriment occurred, or that it was not caused by protected disclosures, were self-contained and independently supported the result.

The appellant was a senior planning officer employed by the respondent local authority. She and her husband had disputes with the Council concerning a sewer and an outbuilding at their property. She brought claims for constructive dismissal and whistleblower detriments under the Employment Rights Act 1996.

The Employment Tribunal dismissed all claims. The reconsideration application was also dismissed. The Employment Appeal Tribunal allowed the appeal to proceed only on a constructive-dismissal ground and refused to allow the whistleblower-detriment challenge to proceed. Permission to appeal to the Court of Appeal was granted on the question whether the alleged detriments had to arise in the employment field. The central issues were whether that direction was legally correct and, if not, whether it affected the Tribunal’s decision.

Disposition. Per Lord Justice Underhill, with whom Lady Justice Rose and Lady Justice Simler agreed, the appeal was dismissed. The Employment Tribunal’s findings that the appellant had not suffered the alleged detriments, or that they were not caused by protected disclosures, were self-contained. Any error concerning the employment-field issue therefore could not affect the outcome.

1. Employment-field requirement. The Court held that the expression detriment in the whistleblower provisions has the same scope as the corresponding expression in the discrimination legislation. It is limited to detriments suffered in the employment field. The protection does not extend to every adverse act by an employer merely because the affected person is also its worker.
2. Discrimination authorities. The reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 was highly persuasive and correct, although the relevant passage was obiter in that case. London Borough of Waltham Forest v Martin [2011] UKEAT 0069/11 was correctly decided. The legislative parts dealing with employment and other fields were intended to be mutually exclusive.
3. Whistleblower legislation. Despite differences in structure and language, the whistleblower and discrimination schemes are fundamentally similar. That supports a consistent interpretation of detriment. The absence of statutory whistleblower protection for public dealings outside employment reflects a legislative choice and does not justify giving detriment a wider meaning.
4. Boundary of the field. The ordinary approach is to ask in what capacity the claimant suffered the detriment, including whether it was suffered as an employee. The field is not confined to acts at the workplace or during working hours. The allocation of an analogous discrimination claim under the Equality Act 2010 may assist, but is not an infallible touchstone. Borderline cases require context.
5. Application. The detriments excluded by the Tribunal concerned the appellant as a resident or householder affected by the Council’s environmental-health and planning powers. They therefore fell outside the employment field. The Court nevertheless treated that conclusion as unnecessary to the disposal because the Tribunal’s other findings independently defeated the claims.

• Court of Appeal (Civil Division). On 11 December 2019, the appeal on the employment-field point was dismissed. The Court also addressed the point and held that the relevant public-authority dealings were outside the employment field.
• Employment Appeal Tribunal. HH Judge Eady QC allowed the appeal to proceed only on a ground concerning constructive dismissal and refused permission for the whistleblower-detriment challenge to proceed.
• Employment Tribunal. The Tribunal dismissed all claims in a judgment sent to the parties on 4 December 2017. A reconsideration application was dismissed on 12 January 2018.