Tiplady v City of Bradford Metropolitan District Council

I start with Mrs Tiplady’s submissions. She contends that there is nothing in the language of section 47B saying a detriment must be suffered “in the employment field”: it simply says “any detriment”. Nor is there any justification for implying such a restriction. An employer will often have it in its power to harm a worker in their private capacity as well as in their capacity as an employee, and where that is done because they have made a protected disclosure it is in accordance with principle and the policy of the Act that they should be accorded protection: the crucial concept is of abuse of the employment relationship. It was a “myth” to say that an employer could wear “two hats” and was only liable for things done wearing its hat as an employer. She emphasised that although in the present case the alleged detriments consisted in the way that a local authority exercised particular statutory powers (i.e. as regards environmental health and planning), the supposed distinction could apply in many other types of case. Various examples were canvassed in the course of oral argument. One example might be an NHS Trust which gave inferior care to a whistleblowing employee who became a patient at one of its hospitals. Others would be where the employer waged a campaign against a whistleblower via social media, or where a coworker who was a next-door neighbour of a whistleblower harassed them at home. Such detriments might, she said, be every bit as damaging as detriments inflicted on a worker in their capacity as such, and there was no reason to suppose that Parliament did not intend that whistleblowers should be protected against them.

Mr Lewis in response essentially adopted the reasoning of the EAT. As appears at para. 28 of her judgment, quoted at para. 13 above, Judge Eady attached decisive importance to the fact that Part V of the 1996 Act affords “protection … to workers and is expressed to relate to the suffering of detriment in employment”: the latter reference is to the title of Part V (see para. 4 above). She could also have added that the detriment has to be inflicted by the employer – or, under sub-sections (1A) and (1B), a co-worker. So the context is, obviously, the employment relationship, and Mr Lewis submitted that it followed that the statute plainly referred only to detriments suffered by a worker in that capacity.

Although, as I have said, there is no authority directly on this issue, there is one decision on an arguably analogous question arising under section 47B; and both parties also relied on decisions relating to the similar (but not identical) provisions of the discrimination legislation. Before considering those cases I should by way of preliminary identify the structure and key provisions of the Equality Act 2010 and the predecessor statutes and statutory instruments (I will say “statutes” for short).

The pre-2010 statutes each began by defining “discrimination” and identifying the protected ground and then proceeded in separate Parts to proscribe discrimination on

The structure of the 2010 Act is essentially the same. It too is divided into different Parts dealing with discrimination in different kinds of relationship (though the term “field” is no longer used), with the employment tribunal having jurisdiction in cases concerning “Work” (which is the heading of Part 5) and the County Court having jurisdiction in cases concerning “Services and Public Functions” (Part 3), “Premises” (Part 4), “Education” (Part 6) etc. The equivalent to section 6 (2) of the 1975 Act and its various pre-2010 cognates is section 39 (2), which reads:

“An employer (A) must not discriminate against an employee of A's

(B)—

(a)

as to B's terms of employment;

(b)

in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c)

by dismissing B;

(d)

by subjecting B to any other detriment.”

It will be seen that, although the structure is rather different, the substance is the same as in the predecessor legislation, including the reference at (d) to “any other detriment”.

I turn to the cases, taking them in chronological order.

In Paget v Essex County Council EAT/75/93 the claimant was employed by the council as a social worker. Her daughter became ill. She had difficulty in providing proper care for her while continuing to work. Her manager suggested that she take compassionate leave. She brought proceedings in the industrial tribunal under the Sex Discrimination Act 1975. The basis of the claim was unclear from her pleadings, but the IT understood it as a complaint that she and her daughter were not receiving proper care from social services and held that such a claim fell outside its jurisdiction.

The decision of the EAT (HH Judge Hargrove QC presiding) is not very fully reasoned. It set aside the decision of the IT, and Mrs Tiplady sought to rely on it for that reason. However, it seems to have done so on the basis only that the complaint (or part of it) was that the suggestion by the manager that the claimant take compassionate leave constituted a detriment suffered by her as an employee. It appears to have accepted, though there is no discussion of the point, that in so far as the complaint was about the failures in the provision of social care by the council the IT would indeed have had no jurisdiction. To that extent it assists the Council rather than Mrs Tiplady.

In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2013] ICR 337, the applicant, who was a Chief Inspector in the Royal Ulster Constabulary, claimed that she had been subjected to a detriment because she was a woman, contrary to article 8 (2) of the Sex Discrimination (Northern Ireland) Order 1976, which was in substantially identical terms to section 6 (2) of the 1975 Act which I have quoted above. The detriment complained of by the applicant consisted of her being denied the opportunity to perform appraisals on constables in her division. The Court of Appeal of Northern Ireland had held that that did not constitute a “detriment” because it entailed no “physical or economic consequence”. One of the issues before the House was whether that was correct. That issue is principally addressed in the speech of Lord Hope, at paras. 31-37 (pp. 348-350). He started by referring to the earlier decision of the House in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065, which concerned a complaint that the employer had failed to provide the applicant with a reference on the ground of his race, contrary to section 4 (2) of the Race Relations Act 1976 (the equivalent of section 6 (2) of the 1975 Act): that refusal had been held to constitute a detriment. Lord Hope noted (see paras. 32 and 34) that both in Khan and in the instant case the statutory cause of action was “discrimination in the field of employment”. That phrase clearly derives from the titles to Part II of the 1976 Act and Part III of the 1976 Order, which were in both cases “Discrimination in the Employment Field”. He continued, at para. 34 (p. 349 E-F):

“So the first requirement, if the disadvantage is to qualify as a ‘detriment’ within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words ‘by dismissing her’ in section 8(2)(b). The word ‘detriment’ draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. (Footnote: ¹)”

He went on, at para. 37 (p. 350 B-C), to note that the treatment of which the applicant complained – performing appraisals – was plainly “in the field of her employment”.

Mr Lewis understandably relied heavily on the passage which I have quoted from para. 34 of Lord Hope’s speech. But it cannot be treated as determinative of the employment field point in the present case, for two reasons:

In Woodward v Abbey National Plc [2006] EWCA Civ 822, [2006] ICR 1436, the claimant brought proceedings in the employment tribunal under section 47B of the 1996 Act claiming that she had suffered various detriments after the termination of her employment. The ET, following the decision of this Court in Fadipe v Reed Nursing Personnel [2001] EWCA Civ 1885, held that it had no jurisdiction to entertain a claim about a detriment which had occurred after the employment relationship had ceased. This Court referred to the subsequent decision of the House of Lords in Rhys-Harper v Relaxion Grounp Plc [2003] UKHL 33, [2003] ICR 867, which held that the discrimination legislation extended to detriments suffered by former employees. Ward LJ, with whom Maurice Kay and Wilson LJJ agreed, held that that reasoning must be applied equally to whistleblower claims. He said, at para. 59 of his judgment (p. 1454 G-H):

“Victimisation [sc. under the discrimination legislation] is established by showing inter alia the discrimination of the employee by ‘subjecting him to any other detriment’ – see s. 6(2) of [the Race Relations Act 1976]and s. 4(2) of [the

Mrs Tiplady said that Woodward showed the Court taking a wide view of the statutory language on the basis that Parliament must have intended to proscribe retaliation against a whistleblower at whatever point in time it occurred, and she submitted that the same reasoning required treating the term “detriment” as covering things done outside “the employment field”: the essential policy of the Act was to prevent whistleblowers from being punished. I see the point, but the fact remains that the questions of the temporal reach of the proscription and of the kind of act to which it applies are different, and Woodward cannot be treated as decisive of the question before us.

In other respects, in fact, Woodward might be thought to assist the Respondent, because the foundation of Ward LJ’s reasoning is that in principle the scope of the discrimination and whistleblower legislation should be the same, notwithstanding the differences of “language and framework”: see in particular the passage quoted from para. 59 of his judgment. That would be a potential answer to the first of the two points about Shamoon which I make at para. 28 above. I return to this below.

The facts of London Borough of Waltham Forest v Martin [2011] UKEAT 0069/11 are closer to those of the present case, but they arise under the Race Relations Act 1976. The claimant, who was black, was employed by the council as a bus driver. In his capacity as a resident of the borough he made false claims to the council for housing benefit and council tax benefit. It decided to prosecute him. The claimant contended that that constituted a detriment within the meaning of section 4 (2) of the 1976 Act and that the decision had been made because of his race. The EAT (Keith J, siting alone) held that the ET had no jurisdiction in relation to the alleged detriment because it was not “in the employment field”: the prosecution was against the claimant “as a local resident”. Keith J relied in particular on the passage from Lord Hope’s speech in Shamoon which I have set out at para. 27 above. He then referred to the distinction between Parts II and III of the 1976 Act, headed respectively “Discrimination in the Employment Field” and “Discrimination in Other Fields”, and made the point that if the decision to prosecute had indeed been made on the ground of the applicant’s race he could have brought a claim in the County Court under Part III. He continued, at para. 22:

“… [T]hat must apply in my opinion even in those cases where the public authority happens to be the employer of the person against whom the prosecution is to be brought. If it were otherwise it would mean that employees of those public authorities who have prosecutorial powers would have additional rights over other members of the public who are prosecuted, because they, unlike the latter, would be able to pursue claims of discrimination in the Employment Tribunal. It would also mean that employees of those public authorities, which have other powers (for example, local planning authorities), would have additional rights over other members of the public who have their planning applications refused, because they, unlike the latter, would be able to bring claims of discrimination in connection with the processing of their planning applications in the Employment Tribunal. Parliament could not have intended that to happen.”

(The reference to planning authorities turns out to have been prescient.) Keith J’s reasoning makes explicit the distinction apparently recognised by the EAT in Paget.

Mr Lewis, again, relied heavily on that decision. Although it is not binding on us, he submitted that it was plainly correct so far as the 1976 Act goes, most obviously because it was applying (as a matter of ratio) what Lord Hope had said in Shamoon. Although the further reasons at para. 22 of Keith J’s judgment are advanced in the context of a discrimination claim he submitted that they have equal force in the

Mrs Tiplady referred us to the decision of the EAT in Western Union Payment Services Ltd v Anastasiou [2014] UKEAT 0135/14, a whistleblower case in which one of the detriments found is described by Judge Eady QC, at para. 6 (4) of her judgment, as “the [employer’s] intervention in the Claimant’s bankruptcy proceedings in the US”. She observed that it was hard to see how that could have been a detriment which the employee suffered “in the employment field”. The judgment was not concerned with that issue, and there are accordingly no further facts. In those circumstances it is impossible to reach a sensible view on the question. But even if Mrs Tiplady is right, the point does not assist us since the judgment contains no reasoning on the issue.

I find it most helpful to start with the position under the discrimination legislation. For the reason given at para. 28 (2) above, I do not believe that Lord Hope’s statement in Shamoon formally constitutes binding authority. Nevertheless it is highly persuasive, and I respectfully believe that it is right: that is, I believe that the structure and language of the pre-2010 legislation means that the phrase “any … detriment” should be understood to refer to a detriment to which the employee has been subjected “in the employment field”. As Lord Hope says, that imposes a limitation on the otherwise broad meaning of the phrase, and it has the result that some detriments to which an employee may be subjected by an employer on a protected ground can not be complained of in the ET.

Although the nature of the issue in Shamoon meant that Lord Hope did not have to explain in what kind of case such a detriment would fall outside the employment field, Martin provides a good example, and I believe it was correctly decided. Keith J rightly emphasises the importance of the distinction between the different Parts of the Act. The main difference in the 1976 Act was as to where complaints can be enforced – i.e. whether in the ET or in the County Court – though there were some substantive differences as well. If “detriment” were given an unlimited meaning it would mean that the selfsame act could form the basis of claims in both the ET and the County Court, but it is clear that Parliament intended that the various Parts of the relevant statutes should be mutually exclusive. The particular point that Keith J makes at para. 22 of his judgment about the importance of employees of public authorities not being in a better position than other citizens is also cogent, but it derives from the more basic point that it is an integral part of the structure of the legislation that it is necessary to characterise detriments as arising in either the employment field or some other field.

Although Shamoon and Martin were concerned with the predecessor legislation I have no doubt that the position is the same under the 2010 Act. The headings to the relevant Parts no longer use the language of “fields”, but the division of protection between different kinds of relationship, enforceable in different tribunals, is retained, and the essential basis of Keith J’s reasoning is unaffected.

Mrs Tiplady drew our attention to the fact that both the 2010 Act and its predecessors contain provisions excluding from the proscription of discrimination by employers discrimination in the way they afford access to “benefits, facilities and services” which they provide to (in summary) the public generally; and that there is no equivalent in section 47B. In the 2010 Act the relevant provision is paragraph 19 of Schedule 9, which reads (so far as material, and omitting immaterial qualifications):

“(1)

A does not contravene a provision mentioned in sub-paragraph (2) in relation to the provision of a benefit, facility or service to B if A is concerned with the provision (for payment or not) of a benefit, facility or service of the same description to the public.

(2)

The provisions are—

(a)

section 39 (2) …;

(b)-(d) …

(3)-(6) …”

As regards the predecessor legislation she referred in particular to section 4 (4) of the Race Relations Act 1976, which is in substantially the same terms. The intention is plainly that any claim as regards such discrimination should be brought under a different Part of the Act – most obviously (in the case of the 2010 Act) Part 3. In fact it appears that the employer in Martin sought to rely on section 4 (4), but Keith J preferred to decide the case on the more general ground identified above (see para. 26 of his judgment): I suspect he saw some difficulties in treating a prosecution decision as falling within the language of “benefits, facilities and services”.

It might be argued, though I am not sure that this was quite Mrs Tiplady’s point, that the fact that a provision of that kind was included in the legislation means that benefits, facilities and services provided to the public generally would otherwise fall within the terms of (in the case of the 2010 Act) section 39 (2), which would in turn mean that the entire genus “detriment” extended beyond the employment field save to the extent of any express limitation ; it would follow that Martin was wrongly decided (unless the facts of the case could have been brought within section 4 (4)), and that Lord Hope was wrong to regard the word “detriment” as being subject to any limitation. I would not accept that argument. The provision can be accounted for on the basis that the provision was necessary to remove any uncertainty about the position.

Accordingly, I believe that if this had been a discrimination claim based on, say, her sex, Mrs Tiplady could not have proceeded in the ET in respect of the detriments in question, because they did not arise in the field of “Work” (to use the terminology of Part 5 of the 2010 Act) but in a different field (namely “Services and Public Functions”, which are covered by Part 3). The question then is whether the same restriction applies to a claim under the whistleblower provisions.

I was initially attracted by Mrs Tiplady’s argument that it was wrong to apply the approach required by the discrimination legislation to the provisions of Part V of the 1996 Act. There are, as she reminded us, clear warnings in the case-law that it is not possible straightforwardly to read across between the two legislative schemes: she referred to para. 33 of my judgment in Timis v Osipov [2018] EWCA Civ 2321, [2019] ICR 655 (p. 666 A-B), which quotes para. 48 of the judgment of Mummery LJ in Kuzel v Roche Products Ltd [2008] EWCA Civ 380, [2008] ICR 799 (p. 809 D-E). She is right to say that the phrase “any detriment” in section 47B (1) is subject to no express limitation in the sub-section itself (and the same goes for sub-section (1A)), nor does it contain any associated language of the kind on which Lord Hope relied in Shamoon. I see the force of the point that the hat which the employer is wearing when it subjects a whistleblowing worker to a detriment should be immaterial, and that all that should matter is that it has acted on the proscribed ground: if there is indeed an “employment field” requirement, it is satisfied by the fact that liability would depend on the existence of the employment relationship.

However, I have in the end concluded that the approach of the ET and of Judge Eady was correct. As Ward LJ observed in Woodward, despite the differences in their particular structure and language, the whistleblower legislation and the discrimination legislation are fundamentally of the same character: see para. 29 above. Likewise, at para. 26 of my judgment in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632, [2018] ICR 982 (Footnote: ²), while I referred to Mummery LJ’s warning in Kuzel, I also observed that the frequently used phrase “whistleblower discrimination” was not inapt, since the concept underlying section 47B was the same as that of the discrimination legislation; and I said that, that being so, it made sense to interpret identical language in the two statutes, where it occurred, in the same way (p. 991B). Similarly, in Timis v Osipov I observed, at para. 69 of my judgment (p. 677E), that even though it was not possible entirely to assimilate the statutory schemes of protection for whistleblowers and other workers with protected characteristics

“… the two situations are nevertheless essentially similar and, other things being equal, one would expect Parliament to have intended to follow the same substantive approach in each”.

Adopting that approach, in my view Parliament must be taken to have intended, when using the terminology of detriment in the discrimination legislation and in Part V of the 1996 Act, that it should have the same scope in both. (Footnote: ³) The point is reinforced by

I accept of course that there is one important difference between “whistleblower discrimination” and the forms of discrimination proscribed by the 2010 Act (and its predecessors), namely that in the latter case the statute provides for protection in the context of other kinds of relationship beyond that of employer and worker. Thus in Martin if the council had indeed been influenced by the claimant’s race in deciding to prosecute him, he would not have been left without any remedy but could have brought a claim in the County Court under Part III of the 1976 Act (or, now, under Part 3 of the 2010 Act); whereas there is no statutory provision preventing public bodies from discriminating against people who have blown the whistle on their activities. (Footnote: ⁴) But I do not regard that as a sufficient reason to construe the language of detriment differently. Rather, it seems to me simply to reflect the legislative choice to afford whistleblower protection only as between worker and employer and not to members of the public more widely. Once that choice is made, it makes sense that the scope of that protection corresponds to that provided to workers in the analogous field of discrimination.

There remains the question of how exactly a detriment is to be recognised as arising, or not arising, “in the employment field”: what are the boundaries of the field ? Lord Hope did not have to consider this in Shamoon, and Martin was a plain case because it concerned the exercise of public powers which clearly fell in a different “field” under the 1976 Act. Broadly, the test suggested by Mr Lewis to the ET, and which it accepted, of asking in what “capacity” the detriment was suffered – or, to put the same thing another way, whether it was suffered by the claimant “as an employee” – seems to me likely to produce the right answer in the generality of cases. This is not strictly the same as the “two hats” analysis which Mrs Tiplady challenges, because the focus is not on the hat being worn by the employer but on that being worn by the employee; but in practice these may, if I may mix my metaphors, be two sides of the same coin. But I do not think the boundaries of the employment field should be drawn narrowly. Mrs Tiplady suggested, in order to illustrate how arbitrary the concept was, that it would mean that detriments would only be within the scope of section 47B if they occurred in the workplace or during working hours: I do not accept that that is the result. It may be a useful thought-experiment to ask whether, if the claim had been based on a protected characteristic under the 2010 Act rather than

I should note in this connection that Mrs Tiplady objected to the ET’s frequent use of the term “private”. In the particular contexts in which it did so it is clear that it was using “private” simply as a convenient way of referring to acts done “outside the employment field”. Thus understood, it seems to me unobjectionable, but I accept that there could be cases in which it might not be a perfect antonym to “in the employment field”. The same applies to its use at one point (see para. 11 (1) above) of the phrase “in the course of the Claimant’s employment”: that terminology comes with a certain amount of baggage which is liable to prove a distraction (quite apart from the fact that it is used for a different purpose in section 47B (1A)).

I turn, finally, to the application of that approach to this case. All of the detriments which the ET excluded on this basis plainly concerned Mrs Tiplady as a resident/householder seeking, or being subject to, the exercise of the council’s powers as a local authority; and, that being so, they did not arise in the employment field. If this had been the decisive issue in relation to any of them the appeal would have failed.

I would dismiss this appeal.