Summary of Judgment

Factual and Procedural Background

The Plaintiff commenced proceedings under section 48(1A) of the Employment Rights Act 1996 ("ERA") in the Employment Tribunal on 15 November 2021, alleging post-employment detriment after making protected disclosures concerning alleged verbal and physical abuse by an individual formerly associated with the Plaintiff's workplace. The claim was made against two respondents: Company A (a charity registered in The State) and Individual A (the former employer/individual in whose The City residence the Plaintiff formerly worked). The Employment Tribunal dismissed the claim against Individual A as out of time. Company A commenced arbitration proceedings in The State in July 2021, alleging breach of a Confidentiality and Independent Consulting Agreement dated 26 April 2016 and seeking damages, injunctive relief (including orders restraining contact with past and present staff of Company A and related entities), and costs. The Plaintiff pleaded that the arbitration claim was brought in response to his protected disclosures and identified that commencement of the arbitration (referred to below as "Detriment 3") was one of the detriments complained of.

At first instance, Judge Fowell in the Employment Tribunal refused to strike out Detriment 3. On appeal to the Employment Appeal Tribunal, Judge Heather Williams held that the Employment Tribunal had made a material error of law and that Detriment 3 fell within the core ambit of Judicial Proceedings Immunity ("JPI"). The Plaintiff obtained permission to appeal to the Court whose lead judgment restored the decision of Judge Fowell. The panel consisted of Judge Andrews (lead), Judge Laing and Judge Males, all of whom agreed with the outcome.

Legal Issues Presented

1. Whether the commencement of arbitration proceedings in The State by Company A (claiming breach of a confidentiality agreement) constitutes an act that can amount to a "detriment" for the purposes of section 47B(1) ERA and therefore is actionable under section 48(1A) ERA.
2. Whether the commencement of those arbitration proceedings is protected from suit by the principle of Judicial Proceedings Immunity (JPI), such that the Employment Tribunal should have struck out the pleaded Detriment 3.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff must for present purposes be assumed to have made protected disclosures and that those disclosures fall within the statutory protection afforded by the ERA.
• The commencement of arbitration proceedings in The State (including claims for damages and injunctive relief based on alleged breach of the confidentiality clause) constituted an act that subjected the Plaintiff to detriment by reason of the protected disclosures (stress, expense and the chilling effect on disclosures), and therefore is actionable under s.47B(1) and s.48(1A) ERA.
• Section 47B(1) uses the unqualified phrase "any act" by an employer done on the ground that a worker has made a protected disclosure; absent an express statutory carve-out, initiation of legal or arbitral proceedings falls within that language.
• Section 43J ERA renders contractual provisions which purport to preclude protected disclosures void; accordingly, any arbitral award enforcing such a provision would be contrary to public policy and unenforceable under the Arbitration Act 1996 and the New York Convention.
• JPI should not be applied in a manner that would defeat the statutory remedy Parliament has provided to whistleblowers under the ERA.

Respondent's Arguments

• The Respondent submitted that Detriment 3 falls within the core ambit of Judicial Proceedings Immunity (JPI) because the commencement of arbitral proceedings is an act within the class of acts protected by JPI.
• The Respondent, through Attorney Kemp, relied upon authorities such as Lincoln v Daniels to argue that the initiation of proceedings (e.g., the request for arbitration) falls within the core immunity as "everything that is done from the inception of the proceedings onwards."
• The Respondent reserved the right to dispute that the arbitration was commenced "on the ground of" the protected disclosures and did not concede that the commencement of the arbitration was necessarily a detriment for the purposes of s.47B(1).

Table of Precedents Cited

Court's Reasoning and Analysis

The court approached the matter by first analysing the statutory provisions and public policy underlying the ERA. Section 47B(1) ERA gives a worker the right not to be subjected to any detriment by any act (or deliberate failure to act) of an employer on the ground that the worker has made a protected disclosure. The court emphasised that "detriment" must be given its ordinary meaning and that the statutory wording "any act" is unqualified and therefore prima facie wide enough to include the initiation of legal or arbitral proceedings.

On the facts pleaded, the commencement of arbitration in The State claiming that the Plaintiff's protected disclosures amounted to a breach of confidence could be taken, for the purposes of a strike-out application, to have subjected the Plaintiff to detriment (expense, trouble, stress and the chilling effect on disclosures). The court observed that allowing initiation of proceedings to be immune from suit would undermine the protection Parliament intended for whistleblowers.

The court then considered whether JPI applied to the commencement of the arbitration. It analysed the rationale and scope of JPI through authorities, distinguishing between: (a) the core immunity (protecting statements and acts intimately connected with the conduct of litigation in order to preserve freedom of expression in judicial proceedings and the proper administration of justice), and (b) extensions to that core immunity where necessary for administration of justice (e.g., witness preparation; investigators' statements).

The court accepted that the arbitration proceedings were quasi-judicial, so JPI is applicable in principle; but examined what conduct the immunity protects and from what it protects. It rejected the Respondent's submission that the initiation of arbitration is necessarily covered by the core immunity simply because it is effected by sending a request for arbitration (a document that initiates proceedings). The court treated Devlin LJ's category language in Lincoln v Daniels as not being a literal rule that immunises every act from the inception of proceedings onwards.

The court relied on modern authorities (notably Singh and XGY) to identify the legitimate justifications for immunity: (i) enabling free communication in litigation-related processes and (ii) avoiding multiplicity of suits that would require re-litigation of matters properly determined in another forum. Applying those authorities, the court concluded that the act complained of in this case is the initiation of the arbitration itself, not statements made within it, and that initiation is not the kind of act that falls within the core immunity as explained in the modern authorities.

The court also relied on section 43J ERA and the public policy embodied in it to observe that confidentiality provisions that purport to preclude protected disclosures are void for that purpose and that an arbitral award enforcing such a provision would not be enforceable in the domestic courts under the Arbitration Act 1996 (section 103(3)) because recognition or enforcement could be refused if contrary to public policy. That strengthened the conclusion that allowing JPI to defeat the statutory remedy would be inconsistent with Parliament's intention.

The court rejected the argument that the applicability of JPI should depend on how the claim was pleaded (e.g., whether it alleged the arbitration was malicious or groundless). The court observed that malice is not an ingredient of the cause of action under s.48(1A) ERA and that whether the arbitration was brought "on the ground of" the protected disclosures is a matter for the Employment Tribunal to determine on evidence.

Holding and Implications

Holding: The court allowed the appeal and restored the decision of the Employment Tribunal judge, thereby overturning the Employment Appeal Tribunal's decision that Detriment 3 fell within Judicial Proceedings Immunity. The court concluded that the commencement of the arbitration in The State, as pleaded, could amount to a detriment under s.47B(1) ERA and was not barred by JPI.

Immediate effect: The pleaded limb of the Plaintiff's claim identified as "Detriment 3" survives the strike-out application and remains for determination by the Employment Tribunal on its merits (including whether the arbitration was commenced "on the ground of" the protected disclosures and whether a detriment was suffered).

Implications: The court emphasised that applying JPI in this context would undermine the statutory protection provided by the ERA and leave a wrong recognised by Parliament without the remedy Parliament intended. The panel stated that the public policy embedded in the ERA indicates that JPI should not attach to the commencement of civil or arbitral proceedings when those proceedings are alleged to have been brought to penalise or stifle protected disclosures. The court reinstated the Employment Tribunal's refusal to strike out Detriment 3. No further novel rule was laid down beyond applying and reconciling existing authority and statutory provisions in the manner summarised above.

Disposition

The appeal was allowed. The Employment Tribunal judge's refusal to strike out the pleaded Detriment 3 was reinstated.

Panel

Judgment delivered by Judge Andrews, with concurring reasons from Judge Laing and Judge Males.