Tiplady v City of Bradford Metropolitan District Council

The Appellant, Mrs Fiona Tiplady, was at the time material to these proceedings a Senior Planning Officer employed by the Respondent, the City of Bradford Metropolitan District Council. Between February 2014 and September 2016 she and her husband had extensive dealings with the Council about problems affecting a property owned by them at Haworth, which is within the Bradford metropolitan district: the property was identified before us simply as “Number Three”. The dealings comprised two episodes, the “sewer episode” in 2014 and the “shed episode” in 2016. In brief:

The sewer episode arose out of the discovery by Mr Tiplady of a sewer running under Number Three which he believed was venting dangerous gases. Although the sewer belonged to Yorkshire Water (“YW”), he and Mrs Tiplady maintained that the Council’s responsibilities were engaged because it posed an environmental health hazard. They were extremely dissatisfied both with YW’s proposals about what needed to be done about the sewer and with the position of the Council’s Environmental Health Department (“EHD”), which did not believe that there was any risk requiring the use of its powers.

The shed episode arose out of a complaint made to the Council that an outbuilding was being constructed at Number Three without planning permission. Mr and Mrs Tiplady did not believe they needed planning permission because the construction constituted permitted development under the GPDO. Council staff were refused access to the property in order to take measurements. The Council eventually applied for and was granted a search warrant, which was executed on 14 September 2016.

Mrs Tiplady was unhappy about what she perceived as the unreasonable way in which the Council and its staff handled both episodes, culminating in the issue and execution of the search warrant. On 16 September 2016 she lodged a formal grievance, and on 21 October she resigned.

On 15 February 2017 Mrs Tiplady presented a claim in the Employment Tribunal (“the ET”) complaining of unfair (constructive) dismissal – both “ordinary” unfair dismissal, by reference to section 98 of the Employment Rights Act 1996, and “automatic” unfair dismissal under section 103A, i.e. by reason of her having made protected disclosures (as defined in Part IVA of the Act). She also complained of sixteen detriments occurring between 2014 and 2016, to which she said the Council had subjected her by reason of the same disclosures.

As regards the detriment claims, Mrs Tiplady’s case was based on section 47B of the 1996 Act. Sub-section (1) reads:

The claim was heard over six days in November 2017 before an ET in Leeds chaired by Employment Judge Davies. Mrs Tiplady appeared in person, and the Council was represented by Mr Simon Lewis of counsel. By a Judgment sent to the parties on 4 December 2017 all Mrs Tiplady’s claims were dismissed. A request for a

It is unnecessary that I should summarise at this stage the basis of the ET’s reasons for reaching its conclusions. The only point that I need to note is that one of the elements in its reasoning as regards the whistleblower detriment claim was that most of the detriments of which Mrs Tiplady complained concerned how the Council had dealt with the sewer and the shed episodes and had accordingly been suffered by her in her capacity as a householder and not as an employee. This has been referred to before us as the “employment field point”. I discuss it fully below. I should also, in fairness to the Council, record that the ET found no serious criticism of its conduct as regards either episode. It is in fact clear from its findings that Mr Tiplady’s conduct towards the Council and its staff in relation to both episodes was unreasonable and his correspondence highly intemperate, and that the same is true of Mrs Tiplady, though not to the same extent.

Mrs Tiplady appealed to the Employment Appeal Tribunal (“the EAT”). Her appeal was initially rejected on the papers by HH Judge Peter Clark under rule 3 (7) of the Employment Appeal Tribunal Rules 1993 (as amended). Following a subsequent oral hearing under rule 3 (10), at which Mrs Tiplady again represented herself, HH Judge Eady QC, by a judgment promulgated on 5 November 2018, allowed the appeal to proceed only on a single ground relating to the Tribunal’s reasoning as regards constructive dismissal.

Mrs Tiplady sought permission to appeal to this Court against the EAT’s refusal to allow her appeal in respect of whistleblower detriment to proceed. Henderson LJ gave permission on a single ground relating to the employment field point. That is the

I confine myself to those parts of the reasoning of the tribunals below which are relevant to the employment field point.

The ET found that Mrs Tiplady had made some protected disclosures, though not all those that she claimed. The issues then were (a) whether the Council had subjected her to all or any of the alleged detriments and (b), if so, whether it did so on the ground that she had made those disclosures or any of them. The employment field point is relevant to the first of those issues because it is concerned with what kind of detriment is caught by section 47B. At paras. 3.6-3.7 of its Reasons, as part of its self-direction on the applicable legal principles, the ET considered a submission from Mr Lewis for the Council that “the protection afforded by s. 47B is confined to detriments to which a worker is subjected as a worker, rather than in their private or non-work capacity”. After a careful discussion, which I need not reproduce here, it accepted that:

The Tribunal proceeded to apply that test in reaching its decision on the sixteen detriments in respect of which Mrs Tiplady claimed. At the risk of being overlaborious, I will briefly summarise its reasoning on each:

The first detriment consisted of an e-mail sent by one Council employee to another about how it should handle the sewer episode. The Tribunal found, at para. 4.42 of the Reasons, that the sending of the e-mail did not constitute a detriment. It continued, at para. 4.43:

This detriment concerned the holding and conduct of a meeting by Mr Pearson, the Deputy City Solicitor. EJ Davies, in her response to the Burns/Barke request referred to above, said that the Tribunal had found that that did not constitute a detriment but also that, even if it had,

This detriment consisted of an entry in the log of the Environmental Health Department which Mrs Tiplady said mischaracterised her complaint relating to the sewer episode. The Tribunal found that this too did not constitute a detriment; but it continued, at para. 4.80:

This detriment concerned an internal e-mail between Mr Pearson and another Council employee. The Tribunal found that it did not constitute a detriment, but it also said, at para. 4.81:

This detriment was what was said to be an unlawful entry to the property by two Council employees who Mrs Tiplady claimed were working in secret for the financial advantage of YW. Again, the Tribunal found that she had suffered no detriment, and also that in any event the conduct of the employees in question had nothing whatsoever to do with any protected disclosure. However, it also found, at para. 4.83:

This detriment was said to consist in one of the Council’s employees, a Mr Lodge, refusing to investigate or take action in relation to the sewer episode. The Tribunal found that Mrs Tiplady had suffered no detriment and that in any event the conduct of the employee in question was not affected by the alleged protected disclosure. It also said, at para. 4.82:

This detriment arises out of a complaint made by Mrs Tiplady and her husband to the Local Government Ombudsman (“the LGO”) about their treatment by the Council. The Council sought comments on the complaint from some of the staff concerned. One of them, a Mr Eaton, mentioned in his comments that Mrs Tiplady’s file as an employee did not show her as residing at the property. This was said to constitute a detriment because it “maligned her to the LGO with an unrelated employment issue”. The Tribunal held that this did not constitute a detriment and that it had nothing to do with any protected disclosure. However, it did say, at para. 4.102 that if it had constituted a detriment: “… the Tribunal would have found that this was in the employment field, because it related to the Claimant’s obligations under her contract of employment to notify her employer of any change of address and it seems to the Tribunal that that created a sufficient connection.”

This alleged detriment was that various Council staff had misled the LGO in their responses to her complaint. The Tribunal found that there was no such detriment and that in any event the acts complained of were not in any way influenced by any of the alleged protected disclosures. It also said, at para.

This detriment was the making by the Council of the application for a search warrant at Number Three. As to this, the Tribunal said, at para. 4.124:

This detriment consists in the execution of the warrant, which Mrs Tiplady contended was unlawful because of various procedural failures. The Tribunal found, at para. 4.129, that there was a detriment. It continued:

This detriment consists of a letter from the Council expressing its view, following the inspection of Number Three on 14 September, that planning permission for the outbuilding was required. At para. 4.137 the Tribunal found both that the sending of the letter did not constitute a detriment and that it was not the result of any of the disclosures relied on. It also said:

It will be apparent from that review that the ET relied on the employment field point in relation to ten of the alleged detriments – nos. (1)-(8), (10) and (13). But it will also be apparent that in each of those cases it was not its principal reason for rejecting Mrs Tiplady’s case: in each, it made findings that she had not suffered a detriment at all and/or that any detriment suffered was not on the grounds of the protected disclosures, and the employment field point was only a fallback alternative. I will return to the implications of that presently.

Judge Eady in the EAT held that the ET’s self-direction as to the law was correct. At para. 28 of her judgment she said:

Paras. 2-3 of Mrs Tiplady’s grounds of appeal read as follows:

This was labelled the ‘Employment field misdirection’ in the EAT appeal.

There is no law that precludes certain ‘private’ activities of employers to be immune from liability in PIDA claims. In particular the myth of employers having ‘two hats’ where actions done while performing their administration functions have no liability and no requirement to conform with ERA detriment restrictions. In this case ‘private’ refers to the performances of public protection functions in the course of their work.”

Henderson LJ when granting permission identified that as “ground 1” and held that it was arguable that the ET erred in law in directing itself that for the purpose of section 47B the detriment complained of “must be a detriment in the field of employment and does not include a detriment in the employee’s private or personal capacity”. He observed that it was a question of law of some importance on which there was no direct authority. He continued:

Mrs Tiplady faces a fundamental difficulty in pursuing her appeal on ground 1, which is the only ground for which she has permission. As noted at para. 12 above, none of the detriment claims was dismissed exclusively (or indeed even mainly) on the basis of the employment field point; and it would seem to follow that even if the ET’s selfdirection on that question was wrong it would make no difference to the outcome because the other bases on which they were dismissed are not, and cannot be, challenged.

When that point was put to Mrs Tiplady she understandably relied on Henderson LJ’s observation quoted at para. 15 above, and the statement from the judgment of the EAT to which he refers, and submitted that the ET’s error on the employment field point rendered its reasoning on the other aspects of the detriments claims unsafe. I am afraid I cannot accept that. The ET’s conclusions that Mrs Tiplady had not suffered the detriments alleged, or, if she had, that they were not on the ground of a protected disclosure, are entirely self-contained, and I can see no basis on which they could be affected by the view taken by it on the employment field point. When Judge Eady said that that point “informed the ET’s decision in a number of respects”, I very much doubt if she meant to suggest anything different: I think that all she meant was that the point was deployed in relation to many of the detriments alleged. But in any event I am sure that the alleged self-misdirection by the ET as regards the employment field point cannot affect its decision as regards the detriments claim or, therefore, the result of the appeal. Since that is the only point on which Mrs Tiplady has permission the appeal must be dismissed.

I have considered whether in those circumstances it would be right for this Court to address the employment field point, particularly since we have not had the benefit of submissions from counsel on both sides. On balance, however, I think we should do

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

in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

by dismissing her, or subjecting her to any other detriment.”

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:

as to B's terms of employment;

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;

by dismissing B;

by subjecting B 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):

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:

Although the word “detriment” is common to both the discrimination legislation and the whistleblower provisions, the “context and … other words with which it is associated” are not identical. Specifically, section 47B (1) of the 1996 Act contains no associated words such as “promotion, transfer or training” or “dismissing” of the kind to be found in section 6 of the 1975 Act and its cognates: if you prefer the Latin, there are no socii.

The facts in Shamoon did not raise the issue which we are considering here. The detriment complained of was plainly in the course of the applicant’s work as a Chief Inspector. That means that what Lord Hope said, which was of an essentially introductory character, must be taken to be obiter. It also means that he did not have to consider exactly what is meant by saying that a detriment “has arisen in the employment field”.

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:

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

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):

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

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.

I agree.

I also agree.