The scope of the protection given to those who are dismissed by their employer having made protected disclosures under the Public Interest Disclosure Act 1998 (inserted into Section 47B of the Employment Rights Act 1996) (the “whistleblowing provisions”) extends to those who were not employed by that employer at the time they made the protected disclosure.
In BP plc v ELstone and anor the claimant had been employed by BP for over 25 years as a Senior Operations Manager before leaving to work for P Ltd. Whilst employed by P Ltd the claimant made a number of disclosures concerning health and safety in connection with BP contracts he was involved with to his former employer, BP.
In 2008 P Ltd dismissed the claimant for alleging breaching confidentiality.
3 days later the claimant returned to work for BP as a consultant. However, shortly afterwards BP informed the claimant that it would no longer engage him because it had learnt that he had been dismissed by P Ltd for breaching confidentiality.
The claimant brought a claim under the whistleblowing provisions against BP.
BP sought to argue that he could not because at the time he had made the disclosures he was not employed by it.
However, both the Employment Tribunal and the Employment Appeal Tribunal held that it mattered not that he was not employed by BP at the time he made the disclosures as the whistleblowing provisions “protect employees and workers, whoever they work for.”
Whilst this decision is welcome, the EAT’s acknowledged that the whistleblowing provisions do not extend protection to job applicants, which is an unacceptable omission.