Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of The Office for Gas and Electricity Markets v Mr Pytel UKEAT/0044/17/JOJ, the Employment Tribunal (“ET”) held that words should be read into the Utilities Act 2000 to allow Mr Pytel (the “Claimant”) to continue his whistleblowing claim against The Office for Gas and Electricity Markets (“OFGEM”) in circumstances where he would otherwise have been committing a criminal offence by bringing it.  The Employment Appeal Tribunal (“EAT”) disagreed with the ET’s approach and said that the balance to be struck between the rights of whistleblowers and the safeguarding of business information obtained in the exercise of regulatory functions was a matter for Parliament, not for the courts.

The facts in The Office for Gas and Electricity Markets v Mr Pytel

The Claimant was employed by OFGEM as an economist.  He claimed that he suffered a detriment for making a protected disclosure under the Employment Rights Act 1996 (the “ERA”) about OFGEM’s implementation of a new smart meter scheme.  Smart meters are electronic devices for homes and businesses that measure the use of electricity and gas. Mr Pytel was tasked with scrutinising elements of a major project concerning smart meters for OFGEM.  He claimed that when he raised concerns with them about the project he was bullied, treated unfairly and side-lined at work.

OFGEM argued that restrictions in section 105(9) of the Utilities Act 2000 prevented the Claimant from providing or receiving any disclosure in the proceedings.  Section 105(9) prohibits the disclosure of certain types of information relevant to the energy sector and their consumers and breach of it is a criminal offence which can result in a fine or jail sentence of up to two years.

Whilst section 105(4) of the Utilities Act does permit disclosure to be made in civil proceedings under certain specified legislation, this exception did not include the whistleblowing provisions of the ERA.  Without the disclosure it would have been impossible for the Claimant to successfully pursue his claim and the ET would not have been in a position to consider whether the detriment the Claimant was complaining about had occurred as a consequence of him whistleblowing.

The decision of the Employment Tribunal

The ET agreed with the Claimant that the restrictions under the Utilities Act 2000 would have such a prohibitive effect on any whistleblowing claims that it would constitute a breach of his rights under the European Convention on Human Rights (“ECHR”), in particular his right to a fair hearing pursuant to Article 6 and his right to freedom of expression under Article 10.

The ET went on to consider whether it was possible to read the Utilities Act 2000 so as to make it compatible with the Claimant’s rights under the ECHR in accordance with section 3 of the Human Rights Act 1998 (“HRA”).  Section 3 of the HRA requires courts to interpret legislation so that their provisions are compatible with the articles of the ECHR wherever possible.

The ET concluded that the legislative bar under the Utilities Act 2000 had in fact been an oversight by Parliament and added the provisions of the ERA to the list of legislative exceptions listed at section 105(6) of the Utilities Act 2000.  Consequently, an order for disclosure was made.  The OFGM appealed this decision.

The decision of the Employment Appeal Tribunal

In allowing OGEM’s appeal, the EAT held that section 3 of the HRA only requires ET’s to read legislation compatibly with rights under the ECHR where it is possible to do so. In this case the exceptions to disclosure in section 105(6) were carefully crafted and the EAT was satisfied that the absence of a provision for disclosure in whistleblowing cases was deliberate. The ET’s decision to read words into that section contradicted Parliament’s intention. In any event, the HRA preserves Parliamentary sovereignty by recognising that Parliament is free to legislate in a way which is incompatible with Convention rights. The ET’s order for disclosure was therefore unlawful and of no effect.

Our solicitors’ views on the case of The Office for Gas and Electricity Markets v Mr Pytel

Sacha Barrett, a Senior Associates in the employment department at Redmans, made the following comment on the case: “In this instance the EAT’s decision curtailed the rights of whistleblowers in the energy sector, potentially leaving them without a remedy in respect of any detriment they suffer as a result of making protected disclosures about the actions or inactions of their employers”

The decision of the Employment Appeal Tribunal in The Office for Gas and Electricity Markets v Mr Pytel UKEAT/0044/17/JOJ  can be found here

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

175 Reviews

Anonymous

efficient, responsive and effective

Posted 7 hours ago

Andrew B

Very good service

Posted 7 hours ago

Anonymous

Excellent service, compassionate and a good outcome

Posted 1 day ago

Anonymous

I had an employment issue which required legal advice. Chris was very supportive and knowledgeable, resulting in an optimum resolution in my favour. Would definitely recommend.

Posted 1 week ago

David M

Very professional and first-rate advice. I would use again. With thanks,

Posted 1 week ago

Anonymous

Got the job done swiftly without going too much in to detail.

Posted 1 week ago

Derek W

Redmans dealt with my case very efficiently and I was happy with the outcome.

Posted 1 week ago

Anonymous

Timely professional advice!

Posted 1 week ago

Anonymous

Very good service

Posted 2 weeks ago

Anonymous

I was in contact with Chris and then worked with Caroline on an employment matter. I was very pleased with the service and professionalism throughout, and came away with satisfied with the outcome. Would happily recommend.

Posted 2 weeks ago

Nikki

Received advice re employment law. Chris was very helpful and advised accordingly. Would happily recommend them and if ever I need help again, will not think twice before using them.

Posted 3 weeks ago

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 months ago

Anonymous

The legal advice was clear and helpful.

Posted 2 months ago

Davinder P

Good Service

Posted 2 months ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 months ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 2 months ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 2 months ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 2 months ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 2 months ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 2 months ago

Anonymous

Good and quick service

Posted 2 months ago