A landmark win for whistleblowing protection at the Court of Appeal: Rogerson v Erhard-Jensen Ontological Initiative Ltd

In a unanimous decision by the Court of Appeal it has been held in Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Limited that Judicial Proceedings Immunity (JPI) cannot apply to the commencement of proceedings aimed at stifling protected disclosures or penalising someone for making them.

JPI refers to the principle that those involved in the judicial process should be immune from civil suit for what they do or say in the course of litigation. The doctrine is based on both the principle that those engaged in litigation should be able to speak freely without fear of civil liability, and based upon a wish to avoid a multiplicity of actions where one court would have to examine whether evidence given before another court was true or not.

Whilst EJ Fowell at the Employment Tribunal concluded that JPI did not apply to the detriment caused when Mr Rogerson’s former employer commenced arbitration against him in Singapore, this was overturned on appeal at the EAT.

In the Court of Appeal’s decision handed down in the past few days, it was concluded that the ET made no error of law in refusing to strike out this alleged detriment.

As articulated by Lady Justice Andrews:

“I can see no reason why it could possibly be regarded as essential to the administration of justice that an employer should be immune from suit under s.48(1A) ERA for commencing litigation or arbitral proceedings against a whistleblower, irrespective of whether the employer considers himself fully justified in doing so. On the contrary, to apply JPI in this context would leave a wrong, recognised by Parliament in s.47(1B) ERA, without the very remedy to which Parliament itself has stated the whistleblower is entitled under s.48(1A). The public policy underlying the protection afforded to whistleblowers strongly indicates that JPI should not attach to the commencement of such proceedings. If it did, it would seriously undermine the protection that Parliament intended to apply.”

Lord Justice Males also commented that for a whistleblower’s remedy to be defeated by a claim for judicial proceedings immunity in circumstances such as exist here would be contrary to the clear parliamentary intention that whistleblowers can recover remedy when they suffer detriment as a result of making a protected disclosure.  

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Mr Rogerson’s case will be remitted to the Employment Tribunal to establish whether the act of commencing arbitration had been carried out “on the ground of” the protected disclosures and whether he suffered a detriment in consequence.

Managing Director Catherine Jackson comments: “This marks a clear win for whistleblowing protection and we celebrate the positive impact for Mr Rogerson after such a long fight, and for all those who come after him.”

If you have been affected by any of the issues in this article or wish to seek advice in respect of whistleblowing law generally,  please contact CSJ Legal here.