Detriments to ex-Employees

The Court of Appeal has handed down an important decision in Woodward v Abbey National plc.

In 2003, the House of Lords ruled (in Rhys-Harper v Relaxion Group plc) that ex-employees were entitled to rely on the discrimination legislation in connection with victimisation occurring after termination of employment (such as the refusal to provide a reference).

Previously, in 2001, the Court of Appeal had held in Fasipe v Reed Nursing Personnel Ltd. that ex-employees could not rely on the Employment Rights Act 1996 so as to claim protection against detriments occurring after termination of employment, as the legislation only protected employees against detriments suffered whilst in employment.

In the current case, Woodward v Abbey National, the Claimant had complained of being subjected to various detriments - after her employment finished - because she had made a protected disclosure some ten years earlier whilst still employed by the Abbey National.

The employment tribunal, and the EAT, rejected her claim because they considered themselves bound by Fasipe, which they regarded as binding authority for the proposition that the detriment had to occur during employment in order to be actionable under the Employment Rights Act 1996. They considered that the discrimination legislation was a wholly different statutory framework, affected by considerations of European law, and Fasipe remained binding as it had not been expressly overruled by the House of Lords in Rhys-Harper.

The Court of Appeal has disagreed, overturning the ET and EAT. Following extensive analysis of the reasoning in Rhys-Harper by Ward LJ, which is worth reading, it held that the provisions protecting against suffering a detriment in the Employment Rights Act should be interpreted so as to include detriments suffered by ex-employees as well as existing employees.

Woodward v Abbey National plc