13 April 2010

Protection for whistleblowers: a note of caution for new employers


Emma Sanderson
Consultant | UK

If your workers have blown the whistle in a former job, by making a protected disclosure, they can sue you as their present employer if you subject them to any detriment as a result. This has been highlighted in the recent case of BP plc v Elstone.

In reality, the whistleblowers most likely to suffer a detriment are not those who have already been successful in securing new employment but those who are still searching. Many employers may be deterred from recruiting job applicants who are known to have blown the whistle on previous employers. Oddly, job applicants are not protected by the express wording of the legislation and therefore currently have no legal recourse if a prospective employer rejects them on this basis.

That said, the Employment Appeal Tribunal in BP plc v Elstone has emphasised that the whistleblowing legislation should, if possible, be interpreted in a way which advances its main purpose, namely protecting those who make a protected disclosure in the public interest. Although there appears to be no sensible way of interpreting the current legislation to protect job applicants, employers should continue to exercise caution in their recruitment procedures in case the situation changes.

In any event, be aware that job applicants are protected by the discrimination laws, which are wider than the whistleblowing laws. An applicant who is rejected for a job for having complained about discrimination (related to sex, race, age, disability, sexual orientation or religion) at a previous employer may have a victimisation claim against that prospective employer.

Emma Sanderson Consultant | London

Category: Article