Court of Appeal states that initiation of arbitration proceedings does not have judicial proceedings immunity for the purposes of constituting detriment for a claim relating to protected disclosures.

The claimant had brought a claim through the Employment Tribunal claiming that he had been subject to a detriment on the basis that he had made protected disclosures.  The complicating factor was that the detriment he relied upon was the commenced of arbitration proceedings against him by the respondent in Singapore (this was related to a relevant contractual clause) and it was related to the allegation that the claimant had breached a confidentiality agreement. The issue was whether this detriment would be allowed or subject to judicial proceedings immunity.

At first instance, the Employment Tribunal decided that it was actionable yet the EAT stated that it fell within the remit of judicial proceedings immunity and struck out that part of the claim.  The claimant appealed to the Court of Appeal.
The Court of Appeal allowed the appeal stating that allowing judicial proceedings immunity in relation to arbitration could stifle the protection that was to be afforded to whistleblowers as intended by Parliament.  The Court of Appeal stated that the immunity applied to things ‘done’ in the course of legal proceedings.  This would include all of the papers and statements within those legal proceedings.  However, the issue here was the initiation of the arbitration proceedings and that did not fall within the core immunity.

With the advance of ADR it has led to the courts having to determine the fine lines between those forms of ADR, such as arbitration, and the litigation route.  In this regard, it was held that the initiation of arbitration could amount to detriment and did not fall within judicial proceedings immunity being mindful of the intention of Parliament to ensure that whistleblowers would be adequately protected when they come forward with protected disclosures.

You can read the case in full here.