BP plc v Elstone and another EAT/0141/09

whistleblowing | protected disclosure to previous employer | detriment by later employer

The Employment Appeal Tribunal (EAT) has held that a worker can be protected against suffering a detriment for whistleblowing by his or her current employer when the protected disclosure was made to a previous employer.

Mr Elstone had a long career in the petrochemical industry, including working for BP plc for over 25 years. He was employed by Petrotechnics Ltd from February 2006 until June 2008, overseeing safety operations for its clients, which included BP plc. Mr Elstone claimed that, while working at Petrotechnics Ltd, he made a series of protected disclosures about health and safety concerns to senior managers at BP plc. Petrotechnics Ltd dismissed him for disclosing confidential information. Mr Elstone subsequently took up a consultant position at BP plc, but he was soon informed that it was no longer prepared to engage him. He was told that this was because his dismissal from Petrotechnics Ltd had come to light.

Mr Elstone brought a claim alleging that he had suffered a detriment for making a protected disclosure under s.47B of the Employment Rights Act 1996. The employment tribunal held that, while a claimant must be in employment when the disclosure is made, the legislation does not directly provide that the employer has to be the same at the time of both the disclosure and the detriment.

The EAT upheld the employment tribunal decision. It noted that, under s.43C of the Employment Rights Act 1996, the disclosure does not have to relate to the employer or its business and does not need to be made to the employer itself. The EAT reviewed the existing case law, including the Court of Appeal ruling in Woodward v Abbey National plc [2006] IRLR 677 CA that a worker can be protected when the detriment occurs after employment has ended. It concluded that the legislation should, if possible, be construed to advance the purpose of the legislation, which is seen to provide protection for those who “blow the whistle” in the public interest. Going back to the wording of the statute, the EAT found that the words “worker” and “employer” in ss.43A and 43B should not be restricted to any particular employment. This means that there is no requirement that a protected disclosure be about the worker’s present employer, or made to his or her present employer.

Case transcript of BP plc v Elstone and another (Microsoft Word format, 76K) (on the EAT website)

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