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 first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.79 Average

    275 Reviews

    Robert

    Excellent service, very professional. would definitely use again.

    Posted 21 hours ago

    Mary B

    I was very happy with the work Chris did for me. I believe with his help I secured a more favourable outcome both financially and in terms of clauses contained in the legal agreement I ultimately signed. I had utmost trust and confidence in the advice Chris provided throughout. Chris kept me informed at every stage and I found him very efficient at bringing matters to a conclusion without unnecessary delay.

    Posted 2 days ago

    Mark M

    I found Redmans very easy to work with. Mel was very responsive, her advice led to an improved settlement. . Recommended.!

    Posted 5 days ago

    Anonymous

    Fantastic service. I would recommend Redmans to anyone who needed a Solicitor. The communication was second to none and consistent clear guidance was given.

    Posted 1 week ago

    Anonymous

    Everyone I dealt with at Redmans were professional, empathetic & always responded promptly and helped make the transition as smooth & efficient as possible for me. If you need legal advice, don’t hesitate & contact the team.

    Posted 1 week ago

    Anonymous

    Sacha was incredibly helpful and professional. Timely and accurate advice at a time I most needed it. I was extremely impressed and grateful.

    Posted 1 week ago

    Sue W

    The people at Redmans talk to you with respect and make you feel like they take your situation personal. They clearly care and are extremely professional. I have recommended Redmans to many people.

    Posted 3 weeks ago

    Anonymous

    Redmans Solicitors were consistently prompt, efficient and professional from the start of my reaching out to them for support in relation to contentious negotiations of an employment matter that continued for almost two months resulting in a positive settlement agreement. Chris Hadrill was diligent, thorough, empathetic and objective in his advice and guidance, showing deep and broad knowledge of the law and legal processes plus extensive practical experience in handling complex matters, resulting in clear and pragmatic advice in ambiguous circumstances that resulted in a very good outcome. I fully recommend Chris Hadrill and Redmans Solicitors! I have made this review anonymous purely because of the confidentiality obligations in the settlement agreement concluded.

    Posted 1 month ago

    Michelle W

    Redmans solicitors provided legal support and advice for a settlement agreement. Excellent customer service, very professional. The senior associate solicitor kept me updated throughout the process, showed empathy and the agreement was signed-off / completed within the agreed timeline.

    Posted 1 month ago

    Mark W

    Redmans Solicitors were extremely professional and helpful! Chris Hadrill handled my case and was an amazing help! His guidance, advice and understanding to my redundancy settlement were always clear, concise and very helpful and I am very grateful to him, and glad I found Redmans to help with my settlement. I highly recommend them!

    Posted 1 month ago

    Alison M

    Very happy with the advice I received

    Posted 2 months ago

    Margaret A

    I found everything about the company to be extremely professional and efficient. During my initial contact with Chris, he listened well and was reassuring, so I felt confident that my case would be well handled. Caroline was excellent at explaining all the legal points and answering my questions, as well as being very supportive and understanding throughout the process. I would definitely recommend this company.

    Posted 2 months ago

    Sanja K

    Very efficient and professional service.

    Posted 2 months ago

    Anonymous

    I found the advice I was given by Redmans Solicitors to be clear and useful and found the solicitor on my case to be both knowledgeable and approachable.

    Posted 2 months ago

    Karen T

    Great service. Thank you.

    Posted 2 months ago

    Anonymous

    Excellent service from Chris & Mel Chin. The best outcome was achieved from the redundancy process. They were extremely thorough, listened carefully and acted swiftly on my behalf. I highly recommend Redmans Solicitors

    Posted 2 months ago

    Shanine M

    Excellent service, thank you so much!

    Posted 2 months ago

    Anonymous

    I found Caroline and Chris very Helpful and provided excellent service. Caroline especially provided great legal advice and made me feel at ease with the whole process. I would highly recommend them. Thank you!

    Posted 2 months ago

    Gayle B

    Excellent company very professional would definitely recommend

    Posted 2 months ago

    Alex K

    Redmans provided an excellent service, timely and effective. Will definitely recommend.

    Posted 2 months ago

    Anonymous

    Great job done on my employment law

    Posted 2 months ago