Two recent EAT decisions have considered the concept of what amounts to a protected disclosure for the purpose of a whistleblowing claim.

Whistleblowing claimant need not have blown whistle to current employer

In BP v Elstone, the EAT has held that a worker who brings a claim against his current employer, alleging that he or she has suffered a detriment for whistleblowing, need not have been employed by the same employer when he or she made the protected disclosure.

Mr Elstone had worked for BP for over 25 years, before leaving to work for another company, Petrotechnics, which had a number of contracts with BP. While employed by Petrotechnics, Mr Elstone made a number of disclosures to a BP manager concerning health and safety issues on BP contracts he was involved in. Petrotechnics dismissed him for gross misconduct on the basis that he had divulged confidential information. After being dismissed, he returned to BP to work as a consultant, however BP terminated the consultancy arrangements when it found out why he had been dismissed by Petrotechnics.

Mr Elstone brought a whistleblowing claim against BP, alleging that he had suffered an unlawful detriment. The tribunal and the EAT upheld his claim, finding that the wording of the legislation allows a claim against the employee's current employer if they suffer a detriment as a result of having made a protected disclosure whilst employed by a previous employer. It was necessary to read the legislation in a way that ensures that workers who blow the whistle are properly protected.

Expression of an opinion does not amount to a qualifying disclosure

The EAT has held, in Goode v Marks & Spencer, that the expression of an opinion about an employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme does not amount to a qualifying or protected disclosure.

Mr Goode was a manager at M&S who was dismissed after being identified as the author of a letter to the Times about proposals by M&S to reduce the enhanced redundancy terms for staff. He had previously complained to his line manager that he thought the proposals were "disgusting". He brought claims for unfair dismissal and whistleblowing, on the basis that both his complaint to his manager and the letter to the Times were "protected disclosures".

His claims were dismissed by both the tribunal and the EAT. It was held that the complaint to his manager could not amount to a qualifying disclosure, as it did not convey any information to his employer, other than his opinion. There was nothing which could lead anyone to reasonably believe that it tended to show that M&S would fail to comply with any legal obligation in respect of the redundancy scheme. His letter to the Times also failed to qualify as a protected disclosure. Again there was nothing in the letter which could lead anyone to reasonably believe that it tended to show that M&S would fail to comply with any legal obligation in respect of the redundancy scheme. However, even if it had been capable of being a qualifying disclosure, because the information disclosed to the Times was not substantially the same information that he had disclosed to his employer, it could not be a protected disclosure. For the purposes of the Employment Rights Act 1996 in order for a statement to the press to qualify as a protected disclosure, the claimant must have "previously made a disclosure of substantially the same information to his employer".

Impact on employers

  • A worker being subjected to a detriment because of a protected disclosure made in a previous employment is not likely to occur very often. However, the BP case highlights the courts' willingness to interpret whistleblowing legislation purposively to protect whistleblowers, because of the strong public interest in fostering such disclosures.
  • The M&S decision is clearly helpful for employers, with the EAT resisting a widening of the definition of a protected disclosure to include mere expressions of opinion by employees about the actions of an employer.
  • Employers should, however, be vigilant as it is possible that in expressing an opinion, a worker may also be making a protected disclosure, for example that the employer's actions or proposed actions amount to a breach of a legal obligation owed by the employer under the employment contract or a contractual policy. Had Mr Goode's complaint and letter to the Times been differently expressed and consistent, the outcome may have been different. If an employer fails to address this, and the employee takes it to the press, they may qualify for protection as a whistleblower.