<center><span class="news-text_italic-underline">Judgment Date: 1 December 2025</span></center>
Whether the commencement of arbitration proceedings against a former employee can amount to a “detriment” for the purposes of whistleblowing protection under section 47B of the <span class="news-text_italic-underline">Employment Rights Act 1996</span> and whether such conduct is shielded by judicial proceedings immunity. The appeal was allowed. The Court of Appeal held that the commencement of arbitration proceedings was capable of constituting a detriment under section 47B and was not protected by judicial proceedings immunity.
The employee brought a claim under Part V of the <span class="news-text_italic-underline">Employment Rights Act 1996</span>, alleging that his former employer had subjected him to a detriment because he had made protected disclosures. The alleged detriment was the employer’s commencement of arbitration proceedings in Singapore, pursuant to a jurisdiction clause, claiming that the employee had breached a confidentiality agreement by making the disclosures. The employment tribunal held that the alleged detriment was actionable. On appeal, the Employment Appeal Tribunal struck out that part of the claim, finding that the commencement of arbitration proceedings fell within the core scope of judicial proceedings immunity.
The Court of Appeal held that section 47B(1) confers a broad right on workers not to be subjected to any detriment by “any act” of the employer on the ground of making a protected disclosure. Those words were wide enough to encompass the initiation of legal or arbitral proceedings. On an ordinary understanding, the commencement of arbitration proceedings alleging breach of confidence as a result of protected disclosures constituted a detriment.
The court rejected the argument that public policy prevented the detriment from being actionable. Section 43J of the <span class="news-text_italic-underline">Employment Rights Act 1996</span> renders void any agreement purporting to preclude protected disclosures. Any arbitral award enforcing such a confidentiality provision would not be enforceable in the UK on public policy grounds under section 103(3) of the <span class="news-text_italic-underline">Arbitration Act 1996</span>. There was therefore no policy reason to deny the employee a remedy.
Turning to judicial proceedings immunity, the court reaffirmed that the immunity primarily protects statements made in the course of litigation, whether written or oral, to ensure freedom of communication in the interests of justice. While the immunity may extend beyond purely evidential material, it does not cover all acts carried out in the course of litigation. Where the immunity applies to conduct, the conduct must be closely linked to the statements forming the basis of the cause of action.
In this case, the cause of action was not founded on statements made in the arbitration, but on the act of initiating the arbitration itself. That act did not fall within the core of judicial proceedings immunity. The court also stressed that immunity could not depend on allegations of malice or bad faith, which were not elements of the statutory whistleblowing claim.
Applying judicial proceedings immunity to arbitration proceedings aimed at suppressing or penalising protected disclosures would undermine the statutory protection afforded to whistleblowers and leave a recognised wrong without the remedy Parliament intended.
The decision confirms that employers may face whistleblowing liability where legal or arbitral proceedings are commenced in response to protected disclosures. It clarifies that judicial proceedings immunity does not automatically shield the initiation of arbitration from scrutiny where such proceedings are alleged to constitute a detriment. The judgment reinforces the strong public policy in favour of effective whistleblower protection, even in the context of arbitration and foreign proceedings.
