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10 February 2020

218: Whistleblower must suffer detriment as a worker

In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal had to consider the extent of a worker’s right not to be subjected to detriments on the ground that they have made a protected disclosure under section 47B of the Employment Rights Act 1996 (ERA).

Mrs Tiplady worked as a senior planning officer for the City of Bradford Metropolitan District Council. Between February 2014 and September 2016, she had some difficult dealings with the Council in relation to sewage and planning issues for a property she owned within the Council’s area of control. She believed that the Council had dealt with these issues unreasonably. In October 2016, Mrs Tiplady resigned. She brought various employment claims, including a claim that she had suffered 16 detriments because she had made protected disclosures.

The Employment Tribunal dismissed Mrs Tiplady’s detriment claims, ruling that although she had made some protected disclosures, any detriments had not been on the ground of those disclosures. The Tribunal also held that ten of the 16 detriments Mrs Tiplady complained of related to the Council’s handling of the sewer and shed issues in her capacity as a householder, not an employee. Since protection under the ERA 1996 was limited to detriments suffered by workers in the field of employment, she could not claim protection for detriments suffered in a private or personal capacity. Mrs Tiplady appealed, arguing that there was nothing in the wording of the legislation that limited the scope of protection to detriment suffered ‘in the field of employment’.

The EAT and the Court of Appeal agreed with the Tribunal’s reasoning, confirming that protection under the ERA does not extend to the wider functions that might be performed by an employer, for example, as suppliers of goods and services to the public. There will usually be a distinction between an individual’s position as a worker and other aspects of their life, although in some cases this may be blurred. The key question to consider is therefore in what capacity the detriment has been suffered, or whether it was suffered by the claimant as a worker. In this case, the detriments complained of arose from the Council dealing with Mrs Tiplady’s property issues, and therefore concerned her as a homeowner rather than an employee.

This decision, which is consistent with previous case law, confirms that the ERA does not cover detriment suffered in a worker’s private or personal capacity. Where an individual has dealings with their employer both as a worker and in an alternative capacity, they will therefore need to identify in which capacity they have suffered any detrimental treatment. Such scenarios will be rare, but may arise, for example, where a Council employee is also a property owner, or a teacher is a parent of a child at the same school.

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