In this week’s “employment law case of the week” we’ll take a look at the recent Employment Appeal Tribunal case of Onyango v Adrian Berkeley t/a Berkeley Solicitors UKEAT/0407/12/ZT.

  1. What were the facts in Onyango v Adrian Berkeley t/a Berkeley Solicitors?
  2. What is the relevant law relating to protected disclosures?
  3. What was the Employment Appeal Tribunal’s decision in Onyango v Adrian Berkeley t/a Berkeley Solicitors?
  4. An employment specialist’s thoughts on Onyango v Adrian Berkeley t/a Berkeley Solicitors

What were the facts in Onyango v Adrian Berkeley t/a Berkeley Solicitors?

Mr. Onyango (“the Claimant”) worked for Adrian Berkeley t/a Berkeley Solicitors (“the Respondent”) as a solicitor. After he left his employment he made a protected disclosure. He subsequently alleged that because of this protected disclosure the Respondent accused him of forgery and dishonesty. He was reported to the Solicitors Regulation Authority on this basis and was subjected to an investigation. The Claimant complained to the Employment Tribunal that he had been unfairly dismissed and that he had been subjected to a detriment because he had made a protected disclosure. The Employment Tribunal held that it did not have jurisdiction to hear the Claimant’s claim of protected disclosure detriment because he made the protected disclosure after he left his employment. The Claimant appealed against this ruling.

What is the relevant law relating to protected disclosures?

Where a worker has been subjected to a detriment they can make a claim to the Employment Tribunal under s.43B Employment Rights Act 1996. Under s.43B ERA 1996 it is unlawful for an employer to subject a worker to a detriment because the worker has made a protected disclosure. However, there was obviously some disagreement about the definition of “worker” in this case and whether a person could still be defined as a worker after their contract of employment had been terminated. The Claimant claimed that they could and the Respondent claimed that they could not. This was the point that the Employment Appeal Tribunal addressed.

What was the Employment Appeal Tribunal’s decision in Onyango v Adrian Berkeley t/a Berkeley Solicitors?

The Employment Appeal Tribunal ruled in the Claimant’s favour, holding that a protected disclosure made after the contract of employment had terminated could be protected under s.43B Employment Rights Act 1996. Worker is defined under s.230 ERA 1996 as those who have or have ceased to be in a contractual relationship of service. The EAT held that the parties were in such a relationship. The EAT also held that since the detriment must have occurred and must have been linked to the protected disclosure they could see no reason for limiting the ability to make such a disclosure to the simple duration of the employment.

An employment specialist’s thoughts on Onyango v Adrian Berkeley t/a Berkeley Solicitors

Chris Hadrill, specialist employment law solicitor at Redmans, said “this is an important and a very welcome case – before Onyango it was rather unclear as to whether a worker could make a claim for detriment due to a protected disclosure after the employment relationship has ended. The Employment Appeal Tribunal has cleared this up by finding that there’s no reason to limit the ability to make a protected disclosure to the period of the employment relationship”.

Direct 2 Lawyers offer advice from employment law solicitors, including no win no fee employment solicitors

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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