The Court of Appeal (CoA) heard a case that clarified the scope of the “detriment” suffered by a worker who makes a protected disclosure, ruling that the initiation of legal or arbitral proceedings by an employer against such an employee constitutes an actionable detriment under the Employment Rights Act (ERA) 1996, effectively overriding the defence of Judicial Proceedings Immunity (JPI).
Facts:
On 15 November 2021, the claimant, Daniel Rogerson, initiated proceedings in the Employment Tribunal (ET) against his former employer, a Singapore-registered charity (the respondent, BB), and an individual, Mr. Werner Erhard, for post-employment detriment due to whistleblowing. Mr. Rogerson, who had worked at Mr. Erhard’s London residence until his resignation in 2019, alleged that he made protected disclosures regarding regular verbal and physical abuse by Mr. Erhard towards members of staff, allegations denied by the respondent.
The claim against Mr. Erhard was dismissed by the ET as having been brought out of time. The respondent’s primary defence is that Mr. Rogerson made the allegations for financial gain rather than altruism. Mr. Rogerson claimed a number of detriments, including formal communications from lawyers threatening legal proceedings. The specific detriment at issue (Detriment 3) was the commencement of arbitration proceedings in Singapore by the respondent in July 2021, which claimed that Mr. Rogerson had breached a confidentiality and independent consulting agreement dating from 26 April 2016. The agreement contained an arbitration clause seated in Singapore under the ICC Rules. The respondent sought relief in arbitration, including liquidated damages of £50,000, an injunction to restrain contact with staff, plus costs, accusing Mr. Rogerson of running an “extortion scheme” by making “false claims”. On appeal by the respondent to the Employment Appeal Tribunal (EAT), Heather Williams J held that the ET had made a material error of law and that Detriment 3 “falls within the core ambit of Judicial Proceedings Immunity”. Mr. Rogerson appealed.
Decision:
The CoA allowed the appeal based on the strong public policy protecting whistleblowers under the ERA 1996, concluding that this statutory protection overrides the common law doctrine of JPI. The core of the Court’s reasoning was that the ERA demonstrates a clear Parliamentary intention to protect workers, and to allow an employer to use litigation as a shield against a whistleblowing claim would render the statute meaningless.
Section 47B(1) of the ERA provides a right not to be subjected to “any detriment by any act” by an employer for making a protected disclosure. The Court found this language to be deliberately broad and unqualified, containing no implied exception for the commencement of legal or arbitral proceedings. Any disclosure that leaves a whistleblower vulnerable to a civil claim for damages (such as a breach of confidence) would thus not be “protected” in any meaningful sense. To allow an employer to escape liability for the act of suing the whistleblower would “seriously undermine the protection that Parliament intended to apply”.
The Court noted that, under Section 43J of the ERA, a confidentiality agreement that purports to preclude a protected disclosure is void. An arbitration award based on such a void clause would be unenforceable in the UK on public policy grounds. Thus, it would be illogical to deny a worker any remedy in the ET while simultaneously refusing to enforce the award against them.
Implications:
The primary implication is that the initiation of legal or arbitral proceedings by an employer against a worker, when executed on the ground of a protected disclosure, is actionable as a detriment under Section 47B of the ERA. This ruling prevents employers from using litigation as a de facto penalty or “punitive tool” to harass or financially pressure a whistleblower. The Court established that the protection is not limited to threats, but extends to the actual act of commencing proceedings.
The ruling clearly establishes that the strong public policy embodied in the ERA of protecting whistleblowers overrides the common law doctrine of JPI in this specific context. This affirms that JPI is not an absolute bar and can be displaced when Parliament has created a clear statutory right and remedy, especially one designed to enforce public policy.
The Court confirmed that an employer cannot simply bypass Section 43J by enforcing a confidentiality clause via foreign arbitration. Any arbitral award seeking to punish a protected disclosure would be unenforceable in the UK as being contrary to domestic public policy.
