Key takeaways
‘Detriment’ interpreted broadly
Any act causing harm, including initiating legal or arbitral proceedings, can qualify.
Retaliatory litigation is high-risk
Employers pursuing claims against whistleblowers may face liability for detriment.
Judicial immunity offers no shield
Starting proceedings to penalise disclosures falls outside the scope of litigation immunity.
Workers who blow the whistle about wrongdoing are given legal protection against detrimental treatment done on the ground of their whistleblowing. As the term ‘detriment’ is not defined in the legislation, by analogy, discrimination case law has often been considered. For example, it has previously been held that a ‘detriment’ occurs in the discrimination context if a reasonable worker would or might take the view that they have been “disadvantaged in the circumstances” (Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285). The Court of Appeal has recently considered what qualifies as an unlawful whistleblowing detriment and whether it could it include the bringing of retaliatory arbitration proceedings overseas.
The claimant, R, brought a claim alleging he had suffered unlawful detriments because he had made protected whistleblowing disclosures. One of the detriments R relied on occurred post-termination – when his former employer commenced arbitration proceedings in Singapore against him seeking liquidated damages and costs for the alleged breach of a confidentiality agreement. An employment tribunal initially refused to strike out this element of R’s claim, but the EAT later held that the commencement of arbitration fell within the core ambit of judicial proceedings immunity (which is a common law principle that protects participants in legal proceedings from being sued for things said or done in the course of litigation). On appeal, the Court of Appeal upheld R’s appeal.
What is the meaning of a ‘detriment’?
The Court began by noting that ‘detriment’ is not defined in the legislation and held that the term must therefore be given its ordinary meaning of “harm or damage”.
The Court emphasised that a worker has the right not to be subjected to “any detriment by any act (or any deliberate failure to act) by his employer on the ground that he has made a protected disclosure”. By using the term ‘any’ throughout this definition, Parliament had expressed a ‘detriment’ in unqualified terms, when it could have instead expressly carved out exceptions.
Could the commencement of arbitration proceedings amount to a detriment?
The use of the phrase “any act” in the relevant legislation was, on the face of it, wide enough to cover the initiation of legal or arbitral proceedings. On any ordinary understanding of the term ‘detriment’, the commencement of an arbitration in Singapore claiming that R’s protected disclosures were a breach of confidence was an act which subjected him to a detriment. In practical terms, it meant that R was put to the trouble and expense, not to mention the stress, of defending arbitration proceedings in another jurisdiction which is a 12–13-hour flight away from the UK. Indeed, the Court noted that “apart from dismissal, it is difficult to conceive of an act which is more likely to subject a whistleblower to detriment than the commencement of legal or arbitral proceedings against him or her which are designed to obtain financial recompense for previous protected disclosures and/or to prevent future protected disclosures.”
Further, it was also difficult to see how the employer could resist the suggestion that the commencement of the arbitration proceedings was not “on the ground of” the protected disclosures. Therefore, at least on the face of it, the commencement of arbitration proceedings against a whistleblower could satisfy all the legislative requirements necessary to constitute a ‘detriment’.
Were there any other reasons to exclude the relevant detriment?
There was no “rational justification” for the proposition that a worker can bring a claim if they are merely threatened with legal proceedings (e.g. for breach of confidence) because of their whistleblowing but they cannot do so if the threat is carried out.
A whistleblowing disclosure which leaves a whistleblower vulnerable to civil proceedings (whether judicial or arbitral, and whether at home or abroad) cannot be described as “protected” in any meaningful sense.
The Court also noted that any agreement between a worker and their employer is void in so far as it purports to preclude a worker from whistleblowing. This would cover a confidentiality clause to the extent that it could be used to preclude a worker from making a protected disclosure (or to give the employer a remedy in damages in the event of a protected disclosure being made). Therefore, if the employer's claim for breach of confidence claim had been brought in the UK, it would not have been effective. Further, any Singapore arbitral award upholding the confidentiality provision as valid and effective to preclude R from making a protected disclosure would not be enforceable in the UK.
Finally, the Court held that judicial proceedings immunity (JPI) did not shield the employer from R’s whistleblowing detriment claim. JPI primarily attaches to statements made in the course of legal proceedings, not to the act of initiating proceedings itself. The key rationale for JPI is to encourage freedom of speech and communication in the course of litigation. Applying JPI in the context of an arbitration aimed at stifling protected whistleblowing disclosures or penalising someone for making them would leave a wrong without the remedy to which Parliament had stated the whistleblower was entitled.
Rogerson -v- Erhard-Jensen Ontological/Phenomenological Initiative Ltd [2025] EWCA Civ 1547
