[2025] EWCA Civ 1466

Part V has been in the 1996 Act since its enactment. It originally had four substantive provisions, section 44 (‘Health and safety cases’), section 45 (‘Sunday working for shop and betting workers’), section 46 (‘Trustees of occupational pension schemes’), and section 47 (‘Employee representatives’). Those all used the formula that an employee “has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that…” ‘Detriment’ is not defined. It is an ordinary English word.

Section 48 gives an employee a right to present a complaint to an ET that he had been subjected to a detriment contrary to any of those provisions. Section 49 imposes a duty on the ET to make an appropriate declaration if it finds a complaint well-founded, and power to award compensation. Section 49(2)-(5) makes provision about the measure of that compensation. Those provisions are still in the 1996 Act, with some later amendments.

Sections 44-47 all contain a provision which disapplies them, in whole or in part, where the detriment in question “amounts to a dismissal (within the meaning of Part X)” or, as the case may be, “(within the meaning of that Part)”. This disapplication is in plain terms. In sections 44, 46, and 47, it makes clear that if Part X did not apply to a dismissal (in short, because the dismissal was the expiry of a fixed-term contract), the employee is not prevented from making a complaint under Part V that he has been subjected to a detriment which amounted to a dismissal.

Part V has been significantly amended since it was enacted. Its provisions retain the original formula to describe the relevant right (see paragraph 33 above). There are fourteen disparate grounds (examples are an employee’s performance of his duties as the trustee of an occupational pension scheme, his application for flexible working arrangements, and his refusal to become an employee shareholder). In twelve cases, the relevant right is conferred on employees.

Three sections or subsections confer rights on workers. They are section 44(1A) (which concerns health and safety), section 45A (‘Working time cases’) and section 47B, the provision which is at issue in this case. Section 47B was inserted by section 2 of the 1998 Act. As amended by the Enterprise and Regulatory Reform Act 2013 (‘the 2013 Act’), it now provides as follows:

“47B Protected disclosures.

(1)

A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

(a)

by another worker of W’s employer in the course of that other worker’s employment, or

(b)

by an agent of W's employer with the employer's authority,

on the ground that W has made a protected disclosure.

(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer.

(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer.

(1D) In proceedings against W’s employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—

(a)

from doing that thing, or

(b)

from doing anything of that description.

(1E) A worker or agent of W’s employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if—

(a)

the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and

(b)

it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of subsection (1B).

(2)

This section does not apply where—

(a)

the worker is an employee, and

(b)

the detriment in question amounts to dismissal (within the meaning of Part X).

(3)

For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K.”

(emphasis added)

All fourteen substantive sections in Part V provide for the relationship between the section in question and Part X. Those provisions differ, depending on the context, suggesting a conscious drafting choice. Thus, most of the provisions which apply to employees contain a subsection which says: “This section does not apply where the detriment in question amounts to dismissal within the meaning of Part X”. Later provisions use ‘10’ instead of ‘X’. Some of those provisions, however, do not disapply the whole section, but only parts of it: see section 45(4), which disapplies section 45(1) and (3), and section 45ZA(5), which disapplies section 45ZA(2) and (4). The provisions which apply to workers use the formula that the relevant section does not apply where the worker is an employee and “the detriment in question amounts to dismissal within the meaning of Part X” – sections 44(4), 45A(4) and 45B(2).

As originally inserted by section 2 of the 1998 Act, section 47B(1) confers a right on a worker not to be subjected to any detriment (using the common formula, see paragraph 33 above) on the ground the worker had made a protected disclosure. Section 47B(1) has not been amended since. Section 47B(2) in its original form catered for the expiry of fixed-term contracts (see paragraph 35). Section 47B(2) was amended in 1999 to its current form. Section 47B(3) provided, and still provides, that for the purposes of section 47B, and of sections 48 and 49, so far as they related to section 47B, ‘worker’ has the extended meaning given to it by section 43K.