Whistleblowing – expanding protection to anticipated protected disclosures

Rachel Barrett, instructed by Slater & Gordon, successfully argued at first instance that it is unlawful to subject an individual to a detriment on the grounds that the employer perceived them to be considering making a protected disclosure.  Jennifer Danvers considers the judgment and potential ramifications.

The issue

Discrimination lawyers will be very familiar with the provisions of s.27 Equality Act 2010, under which it is not only unlawful for an individual to be subjected to a detriment because an employee has done a protected act, but also if an employer believes that an employee ‘has done, or may do, a protected act’.

The wording of s.27 contrasts with that of s.47B Employment Rights Act 1996 which, on the face of it, only provides the right for workers not to be subjected to any detriment on the ground that the worker has made a protected disclosure.

What then for potential whistleblowers who are caught by employers in the preparatory steps of making a protected disclosure or are thought likely to do so and subjected to a detriment as a result?

The decision

In Bilsbrough v Berry Marketing Services Ltd (ET/1401692/2018) the Southampton Employment Tribunal found that the Claimant had been suspended largely because the Respondent believed that he had been researching ways to make a protected disclosure to the ICO.

Rachel Barrett of Cloisters argued, and the Tribunal accepted, that to give effect to the Claimant’s right to freedom of expression under Article 10 ECHR, s.47B and s.103A ERA 1996 have to be read so as to include the situation where an employer subjects a worker to a detriment or dismisses them on the ground that the employer believed that a worker had been considering making a protected disclosure.

The Tribunal, chaired by EJ Dawson, concluded that in this case the Claimant’s Article 10 rights were engaged by him researching how to make a protected disclosure and that the Tribunal was obliged to read in to s.47B and s.103A in order to give effect to that right.

The Tribunal noted that: “The Claimant’s counsel advances a powerful argument that without such an interpretation, effective protection in the context of whistleblowing is not given… [I]f employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making on public interest disclosure.”

Although only a non-binding first-instance judgment, this decision is carefully reasoned.  It should provide a note of caution for those advising employer clients in similar situations and can serve as a useful road-map for claimants bringing claims on this basis.