Court of Appeal success for Michael Polak in important whistleblowing decision following arbitration success
Michael Polak of Church Court Chambers has secured a significant victory for his client, Daniel Rogerson, after the Court of Appeal reinstated a central part of his whistleblowing claim against the organisation, the Erhard-Jensen Ontological/Phenomenological Initiative Limited. The organisation supports the work of ‘self-help guru’ Werner Erhard.
The appellate court ruled that Mr Rogerson’s allegation, that the commencement of overseas arbitration proceedings constituted a detriment, should proceed, overturning a previous ruling of the Employment Appeal Tribunal. The Court of Appeal held that judicial proceedings immunity does not prevent a whistleblower from arguing that the act of initiating litigation, or arbitration, was itself retaliatory in response to their whistleblowing. Lady Justice Geraldine Andrews confirmed that although immunity principle covers statements made in the course of proceedings, and potentially preparation for the provision of evidence, it does not extend to the act of commencing those proceedings. She noted, speaking for the whole Court, that there is no public policy reason to grant employers immunity when they commence litigation to undermine or intimidate whistleblowers, stating:
“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”. [56]
The case concerns arbitration proceedings initiated by the charity in Singapore before the International Chambers of Commerce’s (ICC) International Court of Arbitration in July 2021 after Mr Rogerson raised concerns about alleged mistreatment of staff at the London residence of Werner Erhard to the people around Mr Erhard, including those who provided staff to him, and those responsible for the sale of his material. The Court of Appeal’s Civil Division heard that Michael Polak represented Mr Rogerson during the arbitral proceedings, and the employment tribunal whistleblowing claim was aimed at the associated costs and stress related to the arbitration, rather than anything which took place during it. LJ Andrews held that under the ordinary understanding of whistleblowing detriment, the act of starting arbitration against a whistleblower in a distant jurisdiction can amount to a detriment due to the expense, stress, and burden imposed stating:
“He was put to the trouble and expense, not to mention the stress, of defending arbitration proceedings in another jurisdiction which is a 12- or 13-hour flight away from the UK. Indeed, apart from dismissal, it is difficult to conceive of an act which is more likely to subject a whistleblower to detriment than the commencement of legal or arbitral proceedings against him or her which are designed to obtain financial recompense for previous protected disclosures and/or to prevent future protected disclosures.” [11]
Further, the Court of Appeal heard that Mr Rogerson’s whistleblowing claim in the Employment Tribunal was not an ‘attempt to relitigate the arbitration’ given that ‘the arbitration was found in [Mr Rogerson’s] favour in relation to his disclosures about physical and verbal abuse and he was awarded costs’, and that Mr Rogerson would not be ‘relying upon the arbitrator’s finding of physical and verbal abuse by Mr. Werner Erhard’ but would ‘prove it independently through recordings, witness statements, the normal type of evidence employment tribunals hear every day’.
Lord Justice Males added:
“The provisions of the Employment Rights Act 1996 demonstrate a clear intention on the part of Parliament to provide a remedy, available in the Employment Tribunal, for a worker who suffers a detriment as a result of making a protected disclosure. For that remedy to be defeated by a claim for judicial proceedings immunity in circumstances such as exist here would be contrary to that clear parliamentary intention.” [58]
Speaking after the judgment, Michael commented: “Had the court decided otherwise, it would have gutted the whistleblowing protection afforded in English law. The judgment confirms that companies and powerful individuals cannot use overseas litigation to silence those who speak out about wrongdoing. This is an important result for whistleblower protection and for clarity in this area of the law.”
Mr Rogerson’s case was remitted to the Employment Tribunal for trial.
The Court of Appeal (Civ Div) ruling is available here and the recording of the hearing has been uploaded to YouTube by the Court here.
The case has been reported in a number of publications including The Times, Law360, Case Mine and Lexology.
Michael can be instructed for arbitration, international law, human rights, or criminal matters by contacting his clerks by email (clerks@churchcourtchambers.co.uk) or phone on +44 020 7936 3637
