Judicial proceedings immunity in employment tribunal claims

Judicial proceedings immunity (JPI) is a common law principle introduced to protect judges, witnesses and advocates from civil claims arising out of statements made during a case. Many of the reported cases involve immunity from suit for libel and defamation but the principle is not confined to that.

The Courts have been willing to extend the core JPI principle to cover statements made to ‘quasi-judicial’ bodies such as arbitration proceedings and disciplinary proceedings before the GMC, General Osteopathic Council, the Bar Standard Boards, and the Solicitors Regulation Authority (SRA). However, in P v Commissioner of Police for the Metropolis [2017], the Supreme Court held that a police officer could bring discrimination claims about the decisions made by a ‘quasi-judicial’ police misconduct panel.

The Court of Appeal, in Daniel Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Ltd [2025] EWCA Civ 1547, [2024] EAT 35, [2025] ICR 333 has now allowed the employment tribunal to consider a victimisation claim based upon the bringing of earlier arbitration proceedings.

Mr Rogerson issued an employment tribunal claim against Erhard-Jensen for post-employment whistleblowing detriment, which included a complaint about the commencement of arbitration proceedings against him in Singapore.

The employer sought to strike out Mr Rogerson’s complaint about the arbitration proceedings on the grounds of JPI. At first instance, the employment judge refused to strike out the detriment claim. That decision was overturned on appeal which held that JPI principle covered statements of case and other documents placed before the court.

This analysis was overturned by the Court of Appeal. Andrews LJ concluded that JPI attaches to statements made in court or during litigation, but not to the act of initiating proceedings itself.

The judgment concludes with statements about the public policy underlying the protection afforded to whistleblowers – “For that remedy to be defeated by a claim for [JPI] in circumstances such as exist here would be contrary to that clear parliamentary intention” (para 58).

The Court of Appeal’s decision in Erhard-Jensen stands as a clear statement of principle that the JPI defence should be re-assessed in light of present-day conditions, or else it risks eroding the statutory protection afforded to whistleblowers.

However, it is important not to overstate the reach of the Erhard-Jensen decision. It is concerned with the act of commencing earlier proceedings, rather than statements made during those proceedings, and may yet prove to be confined to such an act.