Summary: Does a worker need to suffer a detriment in the “field of employment” to bring a whistleblowing claim (under the Employment Rights Act)?
Yes, says the Court of Appeal in Tiplady v City of Bradford Metropolitan District Council, available here. It is not sufficient for the detriment to only affect the employee’s private or personal life.
Facts: The employee, Mrs Tiplady, was employed by the City of Bradford Metropolitan District Council (the Council) as a senior planning officer. Between 2014 and 2016, she and her husband complained to the Council about a sewer and the construction of a shed at the property they owned. Mrs Tiplady was dissatisfied with the way the Council handled the problem and she lodged a grievance shortly before resigning in October 2016.
Mrs Tiplady brought claims of constructive unfair dismissal and automatically unfair dismissal under the whistleblowing legislation. She also complained that she had suffered sixteen detriments because of having made whistleblowing disclosures. Most of the detriments about which Mrs Tiplady complained related to the way the Council had handled her sewer and property issues as a householder, and not to her capacity as an employee.
Tribunal and EAT decisions
The Tribunal dismissed Mrs Tiplady’s claims and the EAT dismissed her appeal.
Mrs Tiplady was permitted to appeal to the Court of Appeal, but only in respect of the Tribunal’s finding that whistleblowing protection given to workers is confined to detriment suffered “in the employment field”. Mrs Tiplady argued that there was nothing in the wording of the legislation that limited the scope of protection to detriment suffered in this field.
Court of Appeal decision
The Court of Appeal also dismissed Mrs Tiplady’s appeal.
The Court agreed with the Tribunal that whistleblowing protection for workers is only given to detriment suffered by the worker in the employment field. Detriment to which a worker is subjected to in their private or personal capacity is not be covered.
The Court went on to consider how a detriment should be recognised as having arisen in the employment field. The Court recommended that Tribunals should try to establish in what “capacity” the detriment was suffered. In other words, whether the detriment was suffered by the individual as an employee.
The Court considered that this guidance was likely to be the best approach in most cases, but that “the employment field” should be interpreted narrowly and there are bound to be borderline cases. Accordingly, the Court said this case should not be taken as an attempt to set out definitive guidance.
Implications: This is helpful clarification that a detriment suffered as a result of a protected disclosure has to relate to the person’s employment.
However, employers should be careful before concluding that a disclosure is not connected to employment, as the relationship between some individuals work and personal life maybe complex, particularly where a worker has dealings with their employer both as a worker and in an alternative capacity.