Woodward v Abbey National Plc

Factual and Procedural Background

The Appellant was employed by Company A from February 1991 until redundancy in November 1994. She initially lodged a sex discrimination complaint which was settled without admission of liability in 1996. Subsequently, in January 2003, she made a further application to the Employment Tribunal alleging victimisation, largely grounded in sex discrimination, but also claiming protection under section 47B of the Employment Rights Act 1996 (ERA) for detriment suffered due to making a protected disclosure (whistleblowing).

The alleged protected disclosure concerned the Appellant's repeated concerns about Company A's non-compliance with legal obligations and breaches related to the handling of institutional investors’ funds. The detriments claimed occurred after termination of employment, including failure to provide references, failure to progress job applications, failure to appoint the Appellant to a consultancy role, lack of response to employment requests, and failure to seek alternative employment.

The Employment Tribunal ruled it lacked jurisdiction over the protected disclosure claim because the acts complained of occurred post-employment. The Employment Appeal Tribunal dismissed the Appellant's appeal, affirming the Tribunal's decision. Permission to appeal was granted to consider whether a prior Court of Appeal decision (Fadipe) should be overruled or distinguished in light of a House of Lords decision (Rhys-Harper).

Legal Issues Presented

1. Whether the Court of Appeal is bound by its previous decision in Fadipe v Reed Nursing Personnel despite the subsequent House of Lords decision in Rhys-Harper v Relaxion Group Plc.
2. Whether section 47B of the Employment Rights Act 1996 provides a right not to suffer detriment for protected disclosures made after termination of employment.
3. The proper interpretation of the phrase “in employment” within Part V of the ERA regarding protection from detriment.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the Court of Appeal should not be bound by Fadipe because it conflicts with the House of Lords decision in Rhys-Harper, which extended protection against victimisation to former employees post-termination under discrimination legislation.
• She argued that the protection against detriment under section 47B of the ERA should similarly extend beyond the end of the employment contract, as limiting it to the employment period is arbitrary and undermines the purpose of whistleblower protection.

Respondent's Arguments

• The Respondent maintained that Fadipe remains binding for claims under the ERA, distinguishing it from the discrimination legislation considered in Rhys-Harper.
• They argued that the language and legislative context differ, justifying different legal outcomes, and that protection against detriment under the ERA is confined to acts occurring during employment.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined whether the prior Court of Appeal decision in Fadipe remained binding in light of the House of Lords ruling in Rhys-Harper. It applied the principles from Young v Bristol Aeroplane Co. Ltd regarding when the Court of Appeal may depart from its own precedent, specifically focusing on whether Fadipe could stand alongside the later House of Lords decision.

The Court analyzed the legislative framework of the ERA, particularly Part V which provides protection from detriment "in employment," and noted the ambiguity in the phrase "in employment"—whether it strictly means during the contract or includes the broader employment relationship which may survive termination.

The Court then reviewed the reasoning in Rhys-Harper, where the House of Lords took a purposive approach to discrimination legislation, interpreting protection against victimisation to extend beyond the end of employment to cover former employees, emphasizing the absurdity and arbitrariness of limiting protection to the employment period only.

It contrasted this with the narrower approach in Fadipe, which confined protection to the period of active employment. The Court found that the rationale in Fadipe was inconsistent with the purposive and contextual approach endorsed in Rhys-Harper.

The Court also considered the legislative intent behind the Public Interest Disclosure Act 1998, which amended the ERA to protect whistleblowers, noting that it would be illogical to protect whistleblowers only during employment but not from detriment occurring post-termination.

Accordingly, the Court concluded that Fadipe could not stand with Rhys-Harper and that the protection under section 47B of the ERA should be interpreted to extend beyond the termination of employment, provided there is a substantive connection between the detriment and the employment relationship.

The Court declined to specify the precise test to be applied in future cases, leaving this to the Employment Tribunal to determine based on the facts and further arguments.

Holding and Implications

The Court held that the appeal is allowed and the matter is remitted to the Employment Tribunal for determination consistent with the principles set out in the House of Lords decision in Rhys-Harper.

This decision effectively overrules the restrictive interpretation in Fadipe regarding the temporal scope of protection against detriment for protected disclosures under the ERA. The ruling clarifies that protection against victimisation for whistleblowing can extend beyond the end of the employment contract, provided there is a substantive connection to the employment relationship.

No new definitive test was established; instead, the Employment Tribunal must apply an appropriate test to the facts on remittal. The Court emphasized the importance of a realistic and cost-conscious approach to the litigation going forward. No broader precedent beyond the overruling of Fadipe was set.