[2025] EWCA Civ 1466

In Melia v Magna Kansei Limited [2005] EWCA Civ 1547; [2006] ICR 410 (‘Melia’) this court (Chadwick LJ, with whom Smith and Wilson LJJ agreed) considered Part V as it then stood: so after the 1998 amendments, but before the amendments in 2013 (see paragraph 49 below). The claimant’s allegation was that he was forced to resign because he was a whistleblower. The issue was whether he could base a detriment claim on the series of acts on which he relied as a repudiatory breach of the contract of employment, so long as those acts were before the date when he resigned. The ET had awarded the claimant compensation under Part V up until June 2001, the date when the ET found that the claimant would have been entitled to resign, rather than up until November 2001, when he had in fact resigned.

For our purposes, the significance of Melia lies in its treatment of the architecture of the 1996 Act as amended by the 1998 Act. Chadwick LJ described the provisions of the 1998 Act, and their introduction into Part V, and Part X. He said, in paragraph 15:

“As I have explained, sections 47B and 103A of the 1996 Act spring from the same root – the Public Interest Disclosure Act 1998. The two sections are parallel elements in the protection which Parliament has decided to give to whistleblowers. The sections would, in any event, be read together; if only because they are now sections in the same Act, the 1996 Act. But the fact that they spring from the same root (the 1998 Act) and the fact that section 47B is plainly made subject to the limitation imposed by subsection (2) with section 103A in mind lead irresistibly to the conclusion that the two provisions are intended to be complementary. To put the point more simply: Parliament did not intend to confer a right under Part V of the 1996 Act for the protection of whistleblowers in circumstances where the worker (being an employee) would have a right under Part X of that Act in relation to the same loss or detriment.”

Where compensation is awarded under Part X, it is limited to losses sustained in consequence of the dismissal and would not include compensation for loss suffered before the dismissal. It was important to keep that feature in mind when considering the relationship between the two remedial schemes (paragraph 21).

In that case, the claimant’s main argument was that, to the extent that he had not been compensated for a loss under Part X, compensation should be available under Part V. He accepted that if the loss could be compensated under Part X, he could not be compensated under Part V. Loss suffered before the dismissal was not taken out of section 47B and Part V by the limitation in section 47B(2) (paragraph 32).

Chadwick LJ accepted that submission. When the two sections were read together, “the proper meaning to be given to the phrase ‘the detriment in question amounts to dismissal’ is that it excludes detriment which can be compensated under the unfair dismissal provisions. If the detriment cannot be compensated under the unfair dismissal provisions – because it is not a loss sustained in consequence of the dismissal – then there is nothing to take it out of section 47B; and the provisions in section 49, which require compensation for that detriment, should apply” (paragraph 34).

Whether or not we are bound by Melia, we agree with Chadwick LJ’s lucid analysis of the relationship between Parts V and X of the 1996 Act.