Whistleblowing Laws Apply to Disclosures Made After Termination

A worker who makes a whistleblowing disclosure after termination of employment is protected against detrimental treatment by his former employer.

In Onyango v Berkeley, O was employed as a solicitor by Berkeley solicitors.  After his employment terminated he wrote a letter before claim to his employer, followed by a letter to the Legal Complaints Service (LCS).  His employer then reported him to the Solicitors Regulation Authority (SRA), citing allegations of forgery and dishonesty which led to an SRA investigation.

O alleged that he had been subjected to a detriment because he had made two protected disclosures, in writing the letter before claim and the letter to the LCS.  The tribunal held that a disclosure made after termination could not be protected. 

The EAT disagreed, holding that disclosures made after termination of employment are protected.  Previous case law has decided that detrimental treatment occurring after termination as a result of a disclosure made during employment is unlawful and the EAT could see no reason to limit protection to disclosures made during employment. 

This is the first time that this issue has been considered by the EAT. Previous case law has made it clear that an employer cannot victimise an employee because of a protected disclosure made during their previous employment.  The wide interpretation of the whistleblowing provisions given by the EAT in this case means that employers will need to avoid treating former employees detrimentally, for example by providing an unfavourable reference, as a result of disclosures made both during employment and after termination.

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