When can bringing legal proceedings amount to a whistleblowing detriment? Court of Appeal restores claim in Rogerson

Background

In the case of Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Ltd, the Court of Appeal considered whether bringing arbitration proceedings could constitute a detriment for the purposes of the whistleblowing protections in the Employment Rights Act 1996. Mr Rogerson had worked at the London residence of Mr Werner Erhard and, after resigning, made allegations of verbal and physical abuse towards staff, which he said were protected disclosures.

Following those disclosures, Erhard-Jensen, a Singapore-registered charity linked to Mr Erhard, began arbitration proceedings against him for alleged breach of a confidentiality and consulting agreement. The arbitration sought financial remedies and an injunction, and accused him of running an “extortion scheme” by making false allegations, including those relied upon in his whistleblowing claim.

Mr Rogerson brought a tribunal claim for post-employment detriment against Mr Erhard and Erhard-Jensen. The claim against Mr Erhard was dismissed as out of time, but he continued against the charity, relying in part on the commencement of the arbitration as a detriment. The charity applied to strike out that aspect of the claim, arguing that judicial proceedings immunity applied. The tribunal allowed that aspect of the claim to proceed, but the Employment Appeal Tribunal later struck it out on the basis that judicial proceedings immunity applied. Mr Rogerson then appealed that decision to the Court of Appeal.

The Court of Appeal’s decision

The court held that the initiation of proceedings can plainly amount to a detriment where it exposes a worker to stress, cost and practical disadvantage, especially when the proceedings target the disclosures themselves. Parliament did not carve out an exception to whistleblowing protection for litigation or arbitration, and there is no policy reason to treat the threat of proceedings as actionable but the proceedings themselves as immune.

A key issue was whether judicial proceedings immunity prevented the claim from proceeding. The Court of Appeal held that the immunity protects statements made within legal proceedings, but it does not extend to the act of initiating those proceedings. Treating the commencement of litigation as immune would undermine the statutory whistleblowing protections. As a result, the tribunal is entitled to consider whether the arbitration was started because of the protected disclosures and whether this caused a detriment.

Learning points for employers

This decision highlights the care required when responding to concerns raised by workers who may have made protected disclosures. Initiating legal or arbitral proceedings to enforce confidentiality obligations, or to challenge reputational allegations, may be viewed as a detriment if the decision is influenced by the disclosure. Contracts that purport to restrict protected disclosures cannot be enforced, and attempts to do so may themselves create exposure. Employers should ensure that the reasons for pursuing any form of legal action are separate from and untainted by any protected disclosures, and should assess the risk that the action could be perceived as retaliatory.

For more information or advice, please contact Alastair Fatemi in our Employment team.