Tiplady v City of Bradford Metropolitan District Council

The Court of Appeal dismissed an appeal by a senior planning officer who alleged detriments by her employer for making protected disclosures under Part V of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998). The court reaffirmed that the protection against being subjected to "any detriment" under section 47B is confined to detriments suffered in the employment field (i.e. in connection with the employment relationship) and does not extend to detriments suffered by a worker solely in a private or non‑employment capacity. The court applied the "capacity" approach (whether the detriment was suffered as an employee) and treated the discrimination legislation and the whistleblower provisions as materially analogous for this purpose. On the facts most alleged detriments arose from the council's exercise of statutory powers in its capacity as a local authority (householder/service user matters) and therefore fell outside the employment field; moreover, the Employment Tribunal's alternative findings that there was no detriment or no causal link to protected disclosures were independent and sufficient to dismiss the claims.

The appellant, a senior planning officer employed by the City of Bradford Metropolitan District Council, complained to an Employment Tribunal of unfair (constructive) dismissal and of multiple detriments under section 47B of the Employment Rights Act 1996 arising from interactions with the council about defects at her privately owned property. The events comprised a 2014 "sewer episode" and a 2016 "shed episode" involving the council's environmental health and planning powers. She alleged that responses by council staff, the application for and execution of a search warrant and other acts constituted detriments because of her protected disclosures.

The Employment Tribunal (Leeds) dismissed all claims, finding (inter alia) that many of the acts complained of were suffered by the appellant in her capacity as a householder rather than as an employee (the "employment field" point), and in many instances that there was no detriment or no causal connection to protected disclosures. The Employment Appeal Tribunal allowed the appeal to proceed only on a single ground relating to constructive dismissal; permission to appeal to the Court of Appeal was later granted on a single legal point: whether section 47B requires the detriment to be in the employment field.

The Court of Appeal considered authorities under the discrimination legislation (including Shamoon, Khan and Martin) and whistleblowing decisions (including Woodward) and concluded that the term "detriment" in section 47B is to be given the same limited scope as in the discrimination statutes: a detriment must arise in the employment field. The proper analytical focus is whether the worker suffered the detriment "as an employee" (capacity test), but boundaries may produce borderline cases and require case‑specific assessment.

The court further held that, on the facts of this case, the Employment Tribunal's findings that the relevant acts principally related to the appellant as a householder (not as an employee) were correct; in any event the Tribunal had made independent findings that there was no detriment or no causation by protected disclosures. For those reasons the appeal was dismissed.

Appeal dismissed. The court held that protection under section 47B of the Employment Rights Act 1996 is confined to detriments suffered in the employment field; the Employment Tribunal was entitled to find that the complained-of acts arose from the council’s functions as a local authority (affecting the appellant as a householder) and, in any event, had made independent findings of no detriment or no causal link to protected disclosures, so the appellant's claims failed.

Employment Tribunal (Leeds, Employment Judge Davies) dismissed the claims (Judgment 4 December 2017; reconsideration refused 12 January 2018). Employment Appeal Tribunal (HH Judge Peter Clark on paper; oral hearing before HH Judge Eady QC) allowed the appeal to proceed only on constructive dismissal (judgment promulgated 5 November 2018). Permission to appeal to the Court of Appeal was granted by Henderson LJ on a single ground relating to the employment field point. The Court of Appeal ([2019] EWCA Civ 2180) dismissed the appeal on 11 December 2019.