Woodward v Abbey National Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Maurice Kay,Lord Justice Wilson |
| Judgment Date | 22 June 2006 |
| Neutral Citation | [2006] EWCA Civ 822 |
| Docket Number | Case No: A2/2005/1719 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2006 |
[2006] EWCA Civ 822
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
THE HON. MR JUSTICE BURTON (PRESIDENT)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon. Lord Justice Ward
The Rt. Hon. Lord Justice Maurice Kay and
The Rt Hon. Lord Justice Wilson
Case No: A2/2005/1719
Jeffrey Bacon and Simon Forshaw (instructed by Russell-Cooke) for the Appellant
John Cavanagh QC and Richard Powell (instructed by DLA Piper Rudnick Gray Cary) for the Respondent
Lord Justice Ward:
The issue
In this appeal we are invited by the appellant, Mrs Diana Woodward, to rule that we are not bound by a previous decision of this Court given in Fadipe v Reed Nursing Personnel [2001] EWCA 1885, [2005] ICR 1760 because, although it was not expressly overruled, it cannot stand with the decision of the House of Lords in Rhys-Harper v Relaxion Group Plc [2003] UKHL 33, [2003] ICR 867.
The material facts
Mrs Woodward was employed by Abbey National's Treasury Services (ANTS) as head of financial institutions from February 1991 until she was made redundant in November 1994. She complained of sex discrimination and that complaint was settled without admission of liability in December 1996.
Some years later on 10th January 2003, Mrs Woodward made a further application to the Employment Tribunal complaining of victimisation. The details of her complaint related largely to allegations of sex discrimination but she contended that it included a claim under s. 47(B) of the Employment Rights Act 1996, as amended, (the ERA) that she had been subjected by the respondent, Abbey National Plc, to a detriment done on the ground that she had made a protected disclosure.
When doubt arose as to whether or not that claim was revealed in the particulars of her complaint, she submitted re-amended details of the complaint and sought leave to amend. It is unnecessary to spell out the details. In essence Mrs Woodward was alleging that the disclosure qualifying for protection consisted in her disclosure of the information that the respondent was failing to comply with legal obligations to which it was subject. She asserted that:
"throughout her time with the respondent the applicant was obliged to voice her concerns on regular occasions as to what she reasonably believed to be the reckless and/or negligent manner in which the respondent was handling the funds of its institutional investors, and/or the breaches of fiduciary duty of its directors … and/or breaches by the respondent … of s. 47 of the Financial Services Act 1997."
The detriment to which she said she was subjected arose long after her employment had terminated and it consisted in one or more of the following:
(1) the respondent's failure to provide a reference to BUPA in July 2000 in relation to the appellant's application for a position with BUPA;
(2) the appellant's failure to progress further with various job applications including those made to Barclays Bank and the Royal Bank of Scotland in February and March 2000;
(3) the appellant's failure to be appointed as a consultant to ANTS whilst working for KPMG in 2001;
(4) the failure of Lord Burns, the new Chairman of the respondent, to respond to the appellant's letter of 10th October 2002 in which she sought employment with the respondent; and
(5) the respondent's failure to make any adequate efforts to seek alternative employment for the appellant following her exchange of letters with the respondent in the latter part of 2002.
It is only fair to add that none of these matters have been investigated: the case before us had to proceed as if they are true but the respondent has at all times maintained its strong denial of any wrong-doing.
There was some interlocutory skirmishing which needed a ruling from the Employment Appeal Tribunal, the details of which are again immaterial. The upshot of it was that the sex discrimination matters were set on one side and have since been disposed of. By its decision promulgated on 23rd February 2005 the Employment Tribunal decided as a preliminary issue that it had no jurisdiction to hear the protected disclosure claim because the acts of which complaint was made all took place after the appellant's employment had come to an end. Her appeal to the Employment Appeal Tribunal was dismissed by the Employment Appeal Tribunal on 20th July 2005.
I gave permission to appeal stating that:
"Although success may be hard to achieve the chances of Parliament intervening to correct any injustice is so unlikely that the need for the Court of Appeal to look again at the problem may itself constitute a compelling enough reason to grant permission. The decision of the House of Lords in Rhys-Harper affords the opportunity for this Court to consider whether Fadipe can be overruled or distinguished."
The legislative background
This claim is brought under the ERA and so its provisions are those which are directly relevant. The 1996 Act was amended by the Public Interest Disclosure Act 1998 (the 1998 Act) which is an Act "to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes". In other and colloquial words, it is for the protection of "whistle-blowers". The 1998 Act amended the 1996 Act by inserting Part IVA to deal with "Protected Disclosures". S. 43A provides that a protected disclosure means a qualifying disclosure made by a worker in accordance with any of sections 43C to 43H. 43B defines disclosures qualifying for protection, s.43B(1) (b) being relevant to the appellant's claim in providing that:
"In this Part a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –…
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
S. 43K extends the meaning of "worker" for Part IV A as follows:
"(1) For the purposes of this Part 'worker' includes an individual who is not a worker as defined by s. 230(3) but who –
(a) works or worked for a person [in various special circumstances some of which apply here] …"
Part V deals with "Protection from suffering detriment in employment", with the emphasis added by me. It confers "Rights not to suffer detriment". That right is given to various persons and in various circumstances covering a wide range of activity, for example, under s. 46M those employees called to jury service; under s. 45 employees refusing to do Sunday working; under s. 47A employees exercising the right to time off work for study or training and under s. 47C those taking leave relating to pregnancy, childbirth or maternity. These are but some of the activities and the point being made on the respondent's behalf is that they all relate to activities in which the conditions are encountered whilst the employment or work continues.
The material provisions for the purpose of this appeal are s.44 relied on by Mr Fadipe and s. 47B, introduced by the 1998 reform, relied on by Mrs Woodward. Both fall within Part V. They provide as follows:
"44. Health and Safety cases
(a) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—…
(c) being an employee at a place where –
(i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.
…
47B Protected Disclosures
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) … this section does not apply where-
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of Part X).
(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K."
S.48 deals with enforcement. Under s. 48(1) an employee may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of s. 44 among others. Under s. 48(1A) , also introduced in 1998, a worker may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of s. 47B. Under s. 48(3) the Employment Tribunal shall not consider the complaint unless it is presented before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates.
As the title of the Act suggests, this is a wide-ranging Act on employment rights, various Parts dealing with time off work, suspension from work, leave from work, termination of employment, unfair dismissal, redundancy and so forth.
S. 230, which falls in Part XIV on Interpretation, defines "employees, workers etc" as follows:
"(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
…
(3) In this Act "worker" … means an...
To continue reading
Request your trial
-
David Smith v Carillion (JM) Ltd Secretary of State for Business, Innovation and Skills (Intervener)
...44 of the 1996 Act did not extend to ex-employees and that Tribunals therefore had no jurisdiction to hear such claims. But in Woodward v Abbey National [2006] EWCA Civ 822; [2006] ICR 1436 the Court of Appeal held that Fadipe could not stand in the light of the later ruling in Rhys Harper......
-
Tshishonga v Minister of Justice and Constitutional Development and Another
...OF JUSTICE & CONSTITUTIONAL DEVELOPMENT2007 (4) SA 135 JLCABCDEFGHIJ© Juta and Company (Pty) Ltd Woodward v Abbey National plc (No1) [2006] IRLR 677 ((2006) 103 (27)LSG 31; (2006) 150 SJLB 857): dictum in para [59] appliedWright v Doe d Tatham 1837 (7) Ad and El 313: appliedUnreported cases......
-
Fiona Tiplady v City of Bradford Metropolitan District Council
...not have to consider exactly what is meant by saying that a detriment “has arisen in the employment field”. I return to both points below. Woodward 29 In Woodward v Abbey National Plc [2006] EWCA Civ 822, [2006] ICR 1436, the claimant brought proceedings in the employment tribunal under s......
-
Mr Edwin Jesudason v Alder Hey Children's NHS Foundation Trust
...were made. He had already resigned. However, section 43K has an extended definition of worker which includes former workers. In Woodward v Abbey National plc [2006] EWCA Civ 822; [2006] IRLR 677, the Court of Appeal held that this does not only allow a worker to take proceedings after hav......
-
Whistle-blowing and the equality dimension of victimisation in the workplace
...had ceased. However, thecorrectness of this decision was cast in doubt by the Court of Appeal in Diana Woodward v.Abbey National Plc [2006] IRLR 677) in light of the House of Lords decision in Rhys RelaxionGroup Plc v. Rhys-Harper [2003] UKHL 33.52. Woodward v. Abbey National PLC [2006] ICR......