We know that employees who blow the whistle while employed are protected if they are then subjected to a detriment by their employer. But what if an ex-employee whistleblows, would this be regarded as a ‘protected disclosure’ allowing the employee to claim a remedy under the Employment Rights Act 1996?
In the recent case of Onyango –v- Berkeley Solicitors, a solicitor had sent a letter of complaint to the Legal Complaints Service about his former employer, Berkeley, and had also sent Berkeley a letter before claim. Both of these he did after his employment had ended. Following this, Berkeley reported him to the Solicitors Regulation Authority (SRA) accusing him of forgery and dishonesty. As a result he was investigated by the SRA.
The solicitor brought a claim against his former employer due to their actions in reporting him to the SRA. His claim was that Berkeley had subjected him to a detriment for making two protected disclosures (namely the complaint to the Legal Complaints Service and the letter before complaint).
The Employment Tribunal held that the disclosure post-termination could not be regarded as a protected disclosure. However, this has subsequently been overruled by the Employment Appeal Tribunal. Disclosure post-termination is therefore a protected disclosure, although of course this is subject to change if this or another case goes to a further appeal.
As a result employers should be careful to ensure that any former employees who blow the whistle, even after they’ve left, do not suffer a detriment at their hands.