Whistleblowing detriments can still bite after the employment has terminated

In Day v Lewisham & Greenwich NHS Trust [2025] EAT 123. the EAT confirmed that a detriment could attract to a whistle-blower even after the employment had terminated.  Importantly, in this case, the protected disclosures themselves were made during employment.

Day was a doctor who made protected disclosures (PIDs) about patient safety whilst still in employment.

S47B Employment Rights Act 1996 (ERA) provides that a worker is protected from detriment, or any deliberate failure to act, on the grounds that a protected disclosure has been made.  Under s230 ERA the term worker extends to the concept of a former employee.

The key case of Tiplady v City of Bradford MDC [2020] ICR 965, CA, held that where the PID was made during employment and was closely connected to that employment the disclosure would attract whistleblowing protection that continued even after the employment had ended.

Key point: the moral of this story is that even when the whistleblower has left employment, it is not ‘open season’ for poor references or pejorative public statements (unless these are totally unrelated to the PID).