Employers occasionally face the problem of a disgruntled former employee who, once dismissed, makes a series of critical comments as regards the former employer to a variety of persons, asserting at all times those comments are lawful as protected disclosures (PDs). Often such persons consider that they can act with impunity as a result of their asserted “whistleblower“ status.
In this blog, Nicholas Siddall QC analyses the recent High Court decision in Pertemps v Ladak [2020] EWHC 163 and the extent to which it may offer an employer a remedy in these circumstances.
The facts
The facts of the case were extreme. The defendant was a former employee of the claimant who felt that his departure from its employment had been poorly managed. He asserted that he had been denied a series of payments to which he was entitled. The terms of his departure were the subject of a settlement agreement which included a non-besmirchment provision. However the defendant subsequently sent a series of communications to a variety of recipients alleging fraud and wide-ranging wrongdoing against the senior management of the claimant. This culminated in an email on 5 July 2019 discussed further below.
The claimant issued proceedings against the defendant, asserting breaches of the settlement agreement and that the repeated correspondence was contrary to the Protection from Harassment Act 1997 (PHA). The defendant argued that at all times he acted as a bona fide whistleblower, properly drawing attention to a substantial fraud on the NHS.
Initial interim injunction
The claimant sought an interim injunction. The injunction was granted on notice with a speedy trial and a return date, owing to the fact that the defendant was unrepresented. The key provision of the injunction was as that, in the event that the defendant intended to exercise his rights under the Employment Rights Act 1996 (ERA) to make a PD, he should first give the claimant’s solicitors 14 days’ notice of his intended disclosure, stating the purpose and intended form of the disclosure, and to whom it would be made. If the claimant objected to such disclosure, the judge ordered that the defendant should not make it without obtaining the permission of the court.
The return date
The matter came before Pepperall J who continued the interim injunction until trial but amended the injunction to make clear that the defendant’s ability to make PDs to the NHS Counter-Fraud Authority was not limited in the same manner as other purported PDs.
The factors that weighed in the court‘s assessment were:
- The defendant had concluded a settlement agreement with the claimant. That agreement contained a non-besmirchment provision but preserved the defendant’s right to make PDs.
- The defendant had made a number of allegations to a variety of persons as regards the conduct of the claimant and its senior officers. They included allegations of racism and sexual misconduct.
- On 5 July 2019 the defendant sent an email to a number of NHS Trusts and the claimant’s customers asserting that the claimant was engaged in deliberate criminal fraud.
- The proposed injunction would infringe the defendant‘s right to freedom of expression under Article 10 of the ECHR.
- The fact that the defendant had voluntarily entered into the non-besmirchment provision was a significant answer to the Article 10 point, especially if the context was the settlement of litigation (see ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329, at paragraph 24).
- The facts here were not a settlement of litigation, but the fact that the agreement was the result of legal advice and involved the payment of significant sums was relevant.
- Whether or not the allegations were true was irrelevant in construing the non-besmirchment provision.
- The disclosure of 5 July 2019 was arguably a PD within section 43G or section 43H of the ERA, subject to the issue of reasonableness.
- The disclosure of 5 July 2019 was deliberately targeted to cause damage to the claimant’s business and to the reputations of both the company and its senior management team. It was all the more so in circumstances where, on the defendant‘s own case, he had already made disclosures to the NHS Counter–Fraud Authority. It followed that it was unreasonable.
- The claimant would not be adequately compensated in damages, whereas the defendant would were the injunction not to be upheld at the final hearing.
Accordingly, Pepperall J continued the injunction but relaxed it in one regard, stating that there was no limitation on the defendant’s ability to make any alleged PD to the NHS Counter-Fraud Authority.
Analysis
The actions of the defendant were extreme and the court accepted that his conduct disclosed an arguable case of harassment under the PHA. His disclosures were an obvious breach of the settlement agreement. However, the judgment demonstrates that in appropriate circumstances it is possible to restrain the right of a former employee to make alleged PDs.
It is important to recognise the remarkable approach of the defendant in this matter and the concern that the court felt in limiting the important public right to make a PD. Employers should bear this in mind before running to court for an injunction when faced with an abusive former employee making alleged PDs. However, when faced with an intransigent and unreasonable ex-employee, the decision in Ladak offers employers some ability to prevent such actions.
