Employers Beware: Post-termination Whistleblowing

by Orrick - Global Employment Law Group

In the recent case of Onyango v. Berkeley Solicitors, the UK Employment Appeal Tribunal ruled that an employee was allowed to bring a ‘whistleblowing’ claim relating to a protected disclosure that was made after the termination of his employment.

Under UK law, workers are protected from receiving detrimental treatment as a result of raising a concern about certain types of wrongdoing occurring in the workplace. In Onyango, the Claimant (Mr. Onyango) brought a claim in the Employment Tribunal alleging that as a result of making a protected disclosure, he was accused of forgery and dishonesty which ultimately led to him being investigated by the regulatory body for solicitors in the UK, the Solicitors Regulatory Authority. The Employment Tribunal held that it did not have jurisdiction to hear Mr. Onyango’s claim because he had made the protected disclosure after the termination of his employment and that it could only hear the case where such disclosure was made during the course of his employment. Mr Onyango appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal allowed the appeal on the basis that the ‘whistleblowing’ legislation (section 47B of the Employment Rights Act 1996) did not limit Mr. Onyango’s protection to disclosures that were made during the course of his employment and a post-termination disclosure may be relied on where it leads to detrimental treatment. The Employment Appeal Tribunal therefore ruled that Mr. Onyango was entitled to bring a claim and the matter was referred back to the Employment Tribunal for determination of the complaint.

In reaching its conclusion, it was the Employment Appeal Tribunal’s view that since the detrimental treatment must be caused as a result of the protected disclosure, the detriment must therefore occur after the disclosure and because the detrimental treatment may arise after termination (under the legislation), the Employment Appeal Tribunal found no justification for limiting the period in which the disclosure is made to the duration of the employment.

What does this mean for employers?

This case highlights the importance for employers to ensure that they take an equal level of care both prior to and post termination to avoid subjecting an employee to detrimental treatment as a result of that employee making a protected disclosure, even where the protected disclosure is made after the employment terminates.

Other Forthcoming Whistleblowing Developments

The Government has recently announced a number of intended changes to the current whistleblowing legislation, via the Enterprise and Regulatory Reform Bill (which is currently passing through Parliament), as follows:

  • Protecting whistleblowers from bullying or harassment by co-workers. Under the current legislation, whistleblowers are only protected from bullying or harassment by their employer and not by co-workers e.g. official acts, such as demotion, rather than acts of harassment of which the employer may not be aware. The Government proposals, therefore, will mean that an act of detrimental treatment by one co-worker towards another who has made a protected disclosure (e.g. about that first person) will be treated as though that detrimental treatment was caused by the employer. Consequently, the employer will be responsible for the damages. The Government has however proposed a defence for an employer which is able to show that it took all reasonable steps to prevent a co-worker from subjecting another co-worker (who made a protected disclosure) to detrimental treatment. This encourages employers to implement clear and active policies and training on whistleblowing across the workforce and also to take specific and proactive action to notify any “accused” employee of their duty not to subject the accuser to any detrimental treatment where a protected disclosure is asserted.
  • Extending the protection of the legislation to job applications – currently only existing workers are protected. This extension would prevent the blacklisting of potential job applicants who had made protected disclosures against their former employers. Withdrawing an offer to an applicant on discovery that they had sued their former employer for unfair dismissal would accordingly become more dangerous, in case the action had a whistleblowing background.
  • Good faith and public interest – the Government is intending to remove the current requirement for protected disclosures to be made “in good faith”; rather, Tribunals are to be granted the power to reduce compensation by up to 25% where a protected disclosure has not been made in good faith. To counteract the impact of this change, the proposal also includes a requirement that the disclosure must, in the worker’s reasonable belief, be “in the public interest” (in line with the original spirit of the framework legislation: after all, entitled the Public Interest Disclosure Act). This last addition is also intended to remove the ability of employees to claim whistleblowing based on a breach of their own contract (such  as a reduction in bonus levels or a breach of the duty of trust and confidence) – a construction of the current legislation which has caused many an employer a headache in termination settlement discussions.

You can see the Enterprise and Regulatory Reform Bill updated policy paper here. Keep up to date with the developments on this wide-ranging bill and its progress towards enactment by following us on Twitter @OrrickEmpUK.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Global Employment Law Group | Attorney Advertising

Written by:

Orrick - Global Employment Law Group

Orrick - Global Employment Law Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.