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Whistleblowing: can a worker claim post-termination losses caused by pre-termination detriments?

09 February 2018 #Whistleblowers

The Claimant in the case of Wilson Solicitors LLP and others v Roberts was a solicitor and member of the LLP.  He was also Managing Partner and held several compliance roles. A complaint of bullying was made against one of the Senior Partners and the Claimant was appointed to investigate it. When he was expected to present his findings to the Board, the members did not turn up.  They later voted to remove him as Managing Partner and he was also removed from his compliance roles.  As a result, the Claimant wrote to the members alleging that they had repudiated the Members Agreement, he accepted the breach and confirmed that he was giving one month’s notice of termination of his membership.  The LLP denied any breach and rejected the notice.  When he did not return to work, he was later expelled from the LLP.  

The Claimant brought a claim in the Tribunal, alleging that he had been subjected to pre-termination detriments as result of having blown the whistle.  However, he did not claim that the actual expulsion from the LLP was a detriment.  The Claimant sought to recover approximately £3.4 million in compensation (most of which related to future loss of earnings).

The Tribunal struck out the claim, having held that it was not possible (in a LLP context) for the Claimant's membership to have been "constructively terminated".  It did not however explain why it had struck out the part of the claim that concerned post-termination losses.  The Claimant appealed.  Whilst the EAT agreed that there was no constructive termination, it held that the Claimant could claim post-termination losses provided they were properly "attributable to" the detriment.  This was the case even if the detriments had been followed by a lawful termination and held that this would not break the chain of causation.

The Respondent’s recent appeal was unsuccessful.  The Court of Appeal held that the Claimant could bring a claim for post-termination losses caused by pre-termination detriments and agreed that a lawful termination did not break the chain of causation.


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