Protected Disclosure - A Haunting Experience?

Actions can have far-reaching and often unforeseen consequences. But surely a former employer can't be liable to a former employee for alleged detriment occurring after the employment has ended? Yes it can, confirmed the Court of Appeal on 22 June 2006 in Woodward v. Abbey National PLC [2006] EWCA Civ 822.

The case concerned a claim under section 47B of the Employment Rights Act 1996. This gives a worker the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer which has been done on the ground that the worker has made a protected disclosure. Protected disclosures (per Part IVA of the Employment Rights Act 1996) are those disclosures, not themselves criminal offences, made appropriately and in good faith in respect of a relevant concern about the employer's business. Qualifying disclosures (i.e. those qualifying for protection) include the following (see section 43B of the Employment Rights Act 1996):

1. that a criminal offence has been committed, is being committed or is likely to be committed,
2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
3. that a miscarriage of justice has occurred, is occurring or is likely to occur,
4. that the health or safety of any individual has been, is being or is likely to be endangered,
5. that the environment has been, is being or is likely to be damaged, or
6. that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

In the instant case the employee, Diana Woodward, had been employed by Abbey National's Treasury Services from February 1991 until she was made redundant in November 1994. She asserted that throughout her time with Abbey National she was regularly obliged to voice her concerns as to alleged reckless and/or negligent handling of the funds of its institutional directors and/or breaches of fiduciary duty. She alleged detriment to which she was subjected long after her employment had terminated which included alleged failure to supply a reference and other matters.

The leading judgment was given by Ward LJ who took the view that the public interest 'which led to the demand for this Act to protect individuals who make certain disclosures of information in the public interest and to give them an action in respect of that victimisation, would surely be sold short by allowing the former employer to victimise his former employee with impunity.'

He also indicated that it:

'. . .simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can.'

So if:

'. . . it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted.'

Shakespeare's Macbeth was troubled by the unscheduled appearance of the ghost of murdered Banquo at a royal banquet. In like manner employer authorities may be disturbed by living claims from former employees long after they have left the Council. Authorities will therefore need to make sure their managers act properly and reasonably also in relation to former employees if they wish to avoid a haunting experience.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.