Daniel Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Limited

Judicial proceedings immunity does not protect an employer from a statutory whistleblowing detriment claim based on commencing court or arbitral proceedings against a worker. The core immunity concerns statements made in the course of proceedings, and related acts connected with those statements. It does not extend to the initiation of proceedings where the initiation itself is the alleged detriment. The Employment Rights Act 1996 gives workers an unqualified right not to suffer detriment on the ground that they made a protected disclosure. Applying immunity in this context would defeat the statutory remedy and undermine the protection Parliament intended.

The claimant, a worker, brought proceedings under section 48(1A) of the Employment Rights Act 1996 against his former employer, alleging that the employer had subjected him to detriments because he made protected disclosures about abusive treatment of staff. One alleged detriment was the employer’s commencement of arbitration proceedings in Singapore for breach of confidentiality.

The Employment Tribunal declined to strike out that allegation. On the employer’s appeal, the Employment Appeal Tribunal held that it fell within the core ambit of judicial proceedings immunity: [2024] EAT 135. The central issue before the Court of Appeal was whether the commencement of the arbitration was an actionable detriment or was protected by judicial proceedings immunity.

1. Appeal allowed. The Court of Appeal restored the Employment Tribunal’s refusal to strike out the allegation concerning commencement of the arbitration.
2. “Detriment” in section 47B(1) of the Employment Rights Act 1996 bears its ordinary meaning of harm or damage. “Any act” is wide enough to include initiating legal or arbitral proceedings. On the pleaded facts, commencing a distant arbitration to obtain financial relief for alleged breaches arising from protected disclosures, and to restrain further disclosures, could subject the worker to a detriment and could be action taken on the ground of those disclosures.
3. Section 43J of the Employment Rights Act 1996 is a powerful indication that contractual terms cannot be used to preclude protected disclosures. An arbitral award enforcing such a term would be contrary to public policy and could be refused recognition or enforcement under section 103(3) of the Arbitration Act 1996, as applied through sections 100 to 104.
4. The Singapore arbitration was quasi-judicial, so judicial proceedings immunity applied in principle. However, the core immunity is directed to statements made in court or in the course of litigation, and to acts sufficiently connected with such statements. The act complained of here was the initiation of the arbitration itself. Statements in the request for arbitration or pleadings merely evidenced the connection between the proceedings and the protected disclosures; they did not themselves cause the alleged detriment.
5. The scope of immunity cannot depend on the individual pleading or characterisation of the proceedings. Nor was immunity necessary to prevent relitigation or a multiplicity of actions: the Employment Tribunal could determine the truth and protected status of the disclosures, the employer’s reason for commencing the arbitration, and the resulting detriment.
6. Applying immunity would leave a wrong recognised by Parliament without the remedy provided by section 48(1A). It was therefore contrary to the statutory policy protecting whistleblowers. Lady Justice Elisabeth Laing and Lord Justice Males agreed with Lady Justice Andrews.

• Court of Appeal (Civil Division): Appeal allowed and the relevant part of the claim restored.
• Employment Appeal Tribunal: The Tribunal’s refusal to strike out the allegation was reversed on the basis that it fell within the core ambit of judicial proceedings immunity: [2024] EAT 135.
• Employment Tribunal: Judge Fowell refused to strike out the allegation concerning commencement of the Singapore arbitration.