Background/facts

The Claimant employee worked for BP plc for over 25 years before leaving to join P Limited (a business of which had a number of contracts with BP plc).  When employed by P Limited the employee made a number of disclosures concerning health and safety to senior managers at his previous employer (BP plc), regarding BP plc contracts that he was presently involved with. The employee was then dismissed by his present employer P Limited for gross misconduct on the ground that he had disclosed confidential information.

Several days later the employee went back to BP plc to work as a consultant however whilst in discussion about further work with BP plc, he was told by them they were no longer prepared to engage him at all because they had learnt from P Limited that he had been dismissed for disclosing confidential information.

The employee brought a whistle blowing claim against BP plc complaining that as a worker he had suffered an unlawful detriment under the whistle blowing legislation. The Tribunal in the first instance held that a person bringing such a claim must be in employment at the date of disclosure however this employment need not be employment with the same employer that subjects him or her to a detriment. The Tribunal thought that even if two employments were in no way connected (which they were in this case) what must be borne in mind is the purpose of the legislation which is to protect employees and workers whoever they work for. BP plc appealed this decision.

The Employment Appeal Tribunal upheld the Tribunal’s decision ruling that the protected disclosure need not relate to the employer or the employer’s business nor be made to the employer. By contrast the protection against detriment is plainly related to the current employment, as otherwise the Claimant would not as a worker suffer detriment.

Comment

The case provides further clarification that the hostile act from which the current worker is protected is one which relates to his or her present employment, but that the disclosure that inspires that hostile act by his or her current employer may be related to any earlier time at which the current worker was then of worker status, whoever his or her employer then was.