BP plc v Elstone and another UKEAT/0141/09

In this case the EAT held that a worker could pursue a whistleblowing claim against his current employer based on a protected disclosure he made while working for a previous employer.

Mr Elstone was dismissed for gross misconduct in June 2008 by his then employer, P Ltd. when they discovered Mr Elstone had told two senior BP employees who were clients of his employer about his safety concerns. P Ltd. took the view that this was a disclosure of confidential information and breach of his contract.

Mr Elstone then started working as a consultant for BP but he was let go when P Ltd. informed BP that he had been dismissed for disclosing confidential information. Mr Elstone brought a claim against BP arguing that the company had subjected him to a detriment on the grounds that he had made a protected disclosure. BP argued that protection was lost on the change of employer.

The purpose of the legislation is to provide protection in employment for those who had blown the whistle in the public interest. The Court held that an employee did not have to be working for the employer against whom the whistleblowing claim was eventually made, at the time of the disclosure. Mr Elstone’s claim has been allowed to proceed against BP.

Goode v Marks and Spencer Plc UKEAT/0442/09

In July 2008 M&S submitted proposals to its staff representative body of the new method for calculating enhanced redundancy payments from 1 September. When Mr Goode received a copy of these proposals from his line manager, he told his line manager that he thought they were “disgusting”. His line manager told him to raise his concerns with the staff representative body.

Two weeks later Mr Goode sent an email to The Times attaching a copy of the July 2008 proposal. Mr Goode was identified as the source of the email and after disciplinary proceedings was summarily dismissed in September. He brought a claim for automatic unfair dismissal under s. 103 of the Employment Rights Act 1996. The EAT held that his opinion that the proposals were “disgusting” did not amount to a qualifying disclosure. As he had not disclosed to the press the same information that he had disclosed to his employer a protected disclosure had not been made for the purpose of an automatic unfair dismissal claim.

Key point: The protection offered to employees for whistleblowing is narrow but as these cases show, where employers contest whistleblowing claims, the outcome can be unpredictable.