Post-termination losses recoverable in pre-dismissal detriment claim
A whistleblower can recover future loss of earnings attributable to detrimental treatment received before dismissal. There is nothing which precludes this as a matter of law.
In Wilsons Solicitors LLP v Roberts, Mr Roberts was asked to resign from his position as managing partner and was removed from his position as the firm’s compliance officer. This happened after he produced a report on allegations of bullying made against the firm’s senior partner. He argued that his removal was a repudiatory breach of the LLP agreement entitling him to resign. The LLP denied this and instructed him to return to work, but he refused.
He brought an employment tribunal claim arguing that he had suffered detriments as a result of blowing the whistle and claimed £3.4m, the majority of which was for future loss of earnings. The LLP subsequently expelled him from the LLP but he did not claim that the decision to expel him was due to whistleblowing.
At a preliminary hearing, the employment tribunal struck out his claim that the LLP’s actions entitled him to resign and struck out his claim for the resulting post-termination losses. He appealed to the Employment Appeal Tribunal (EAT), arguing that he was still entitled to recover post-termination attributable to detrimental treatment received before dismissal. The EAT agreed and the LLP appealed to the Court of Appeal.
The Court of Appeal said that there is no rule of law which stops a whistleblower from seeking to claim post-termination losses attributable to detrimental treatment received before dismissal. If Mr Wilson is able to show that the detriments he suffered (his removal as senior partner and compliance officer) made his position untenable, resulting in him refusing to work and exposing him to the likelihood of expulsion from the LLP, then there was no reason why he should not be able to seek compensation for his post-termination losses. Whether those losses are recoverable is a question of fact for the tribunal to decide, based on the evidence.
Whistleblowers can claim compensation for post-termination losses attributable to detrimental treatment received prior to dismissal. However, proving that such losses result from detrimental treatment received before dismissal will not always be easy. A whistleblower will need to show that but for the detrimental treatment they received, they would not have been dismissed and their post-termination losses would not have arisen. Tribunals will have to decide this on a case by case basis.
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