In BP plc v 1. Elstone 2. Petrotechnics Ltd., the Employment Appeal Tribunal (EAT) had to determine whether a worker could bring a claim under Section 47B of the Employment Rights Act 1996 (ERA) on the ground that he had suffered a detriment from his current employer because he had made a protected disclosure where the disclosure was made when he was working for his previous employer.
Mr Elstone had worked for many years in operational management in the petrochemical industry. From February 2006 to June 2008 he was employed by Petrotechnics Ltd., which oversaw and evaluated safety processes and operations for its clients, which included BP. Prior to this, Mr Elstone had been an employee of BP for over 25 years.
Mr Elstone claimed that while he was working for Petrotechnics he made a series of protected disclosures to two senior BP employees regarding concerns he had about safety issues. The subject matter of the disclosures was said to be confidential to Petrotechnics, which dismissed him for gross misconduct. Three days later, Mr Elstone took up an appointment as a consultant to BP. During discussions with another BP manager about doing further consultancy work for the company, he was told that BP was no longer prepared to engage him. The reason for this was that the manager had been told by executives at Petrotechnics that Mr Elstone was dismissed for gross misconduct for disclosing confidential company information.
On examining the wording of the statute, the EAT found that this appears to protect a worker who has made a protected disclosure from suffering a detriment whilst in his current employment. However, there is no restriction that the qualifying disclosure must be about the present employer nor that it must have been made to that employer. Nor is there a requirement that it has to be made at a particular time. In the EAT’s view, the statute provides that the disclosure which prompts the employer’s action may relate to any earlier time during which the person who made the disclosure had worker status, whoever was their employer at the time. The courts are obliged to take a purposive approach to the statutory provisions, so as to ensure proper protection for whistleblowers, and there is nothing in the wording of the statute to indicate that it should be construed otherwise.