Employees have a right, under the Employment Rights Act 1996 (ERA), not to be subject to any detriment by their employer on the grounds that they have made a protected disclosure. Protected disclosures are disclosures that are not criminal offences in themselves, are made appropriately and in good faith in respect of a relevant concern about the employer's business.
The Court of Appeal, has held in the recent case of Woodward v Abbey National Plc, that whistle-blowing provisions of the Employment Rights Act 1996 (ERA) can also be used by individuals who are subjected to a detriment by their employer after the termination of their employment.
The facts of the case were that Ms Woodward had been employed by Abbey National until she was made redundant in 1994. In 2003, around nine years later, she brought a claim against her former employers for sex discrimination and a further claim under s.47B of the ERA that she had suffered a detriment after the termination of her employment due to the fact she had made a protected disclosure whilst employed by them. The detriment included, amongst other things, failure to provide a reference.
Both the Employment Tribunal and the Employment Appeal Tribunal rejected her claim that she had suffered a detriment as they considered themselves to be bound by the decision in a previous Court of Appeal case, Fadipe v Reed Nursing Personnel. In Fadipe it was held that former employees could not rely on s.44 of the ERA in relation to a detriment that occurred after their employment had terminated.
The Court of Session did not follow Fadipe, however, and looked instead to the House of Lords decision in Rhys-Harper v Relaxion Group Plc. In Rhys-Harper, it was held that discrimination legislation could be relied on by employees in a claim relating to discrimination occurring after the end of the employment. Although Rhys-Harper dealt with discrimination legislation and not with the ERA, the court felt that both sets of legislation were seeking to protect employees against post-employment victimisation.
On consideration of the definition of 'worked under' in section 230 of the ERA, the court felt that Parliament intended the phrase to include a former worker. The court did not give any guidance as to time limits as to when an employee may be able to bring a claim in relation to detriments suffered after employment has been terminated and so this may still be an evolving area.