The Court of Appeal has held that, in principle, whistleblowers can claim post-termination losses if they can show that the losses are attributable to pre-termination detriment.
Mr Roberts is a solicitor. He was a member of a law firm, Wilsons Solicitors LLP, and was Managing Partner and Compliance Officer for Legal Practice and for Finance and Administration. He also sat on the Board.
An allegation of bullying was made against the Senior Partner. Mr Roberts investigated the complaint and associated compliance issues, and reported his findings to the board of the firm. The report was due to be discussed at a members’ meeting, but before this happened, the majority of the members delivered a notice stating that they would not attend the scheduled meeting. A few weeks later, the firm demanded that Mr Roberts resign from his post as Managing Partner, and then voted to remove him from the post. He was also removed from the two compliance officer positions before he was able to submit his report.
Mr Roberts wrote to the firm, claiming that they were in repudiatory breach of the membership agreement, that he accepted the breach, and he gave one month’s notice of termination of his membership, saying that the firm’s conduct towards him had made his continued membership untenable. The firm denied that there had been a breach, and instructed him to return to work. He did not return to work, and notified the firm that his membership of the firm would cease on that date. He did not return to work, and was expelled from the firm.
Mr Roberts brought a whistleblowing claim, for compensation for detriment suffered as a result of whistleblowing. Due to case law relating to limited liability partnerships, Mr Roberts could not bring a whistleblowing constructive dismissal claim against the firm. Despite this, he served a schedule of loss, claiming almost £3.4 million. The great majority of the claimed losses were for future loss of earnings.
Mr Roberts argued that his post-termination losses were attributable to detriments that he had suffered before the termination of his membership. His argument was that the conduct of the firm had made his membership untenable, leading him to withdraw, which led (he said) to his inevitable expulsion from the firm. He said that his post-termination losses arose from the conduct of the firm before his expulsion, and were therefore recoverable in his detriment claim. The employment tribunal disagreed with this, and struck out his claim at a preliminary hearing. Mr Roberts appealed to the EAT, which upheld his appeal, and the question ended up before the Court of Appeal.
The Court of Appeal agreed with the EAT, holding that, if Mr Roberts could demonstrate that the detriments were so serious as to make his position as a member untenable and to prevent him from attending work, there was no reason why he should be barred from making this claim. Whether those losses are actually recoverable will be a question of fact. In Mr Roberts' case, no evidence had been heard on this at this stage.
What does this mean for employers?
As the EAT judge pointed out, it may be very difficult for Mr Roberts to show that his losses were in fact attributable to the detriment he had suffered before the termination of his membership. However, this case does establish that whistleblowers can, in principle, claim post-termination losses if they can show that the losses are attributable to pre-termination detriment, potentially therefore increasing awards in detriment cases.
This is the third case on whistleblowing detriment in two months (see our February alert here), all of which have been decided in the whistleblower's favour. These cases follow on from the Esso Petroleum case last year, when non-executive directors were found to be personally liable for nearly £1.8 million for a whistleblowing detriment claim. It seems likely that employers will see more of this type of claim.