Erroneous Legal Advice

Mr John Bowers QC has been asked to stand down as honorary legal adviser to Public Concern at Work.

Mr John Bowers QC gets it fundamentally wrong in relation to advising a whistleblower. 

Author and eminent employment law lawyer John Bowers QC has gained much notoriety from advising on whistleblowing matters.  He is honorary legal adviser to Public Concern at Work and is consulted about their cases.  He appeared in the first of the reported cases in the EAT Met office v Edgar and advised (formally) in ALM v Bladon and (informally) in Street and Derbyshire in the EAT and Court of Appeal.  Mr Bowers has also mediated two major whistleblowing disputes.     

It is a matter of some concern that Mr Bowers has provided inaccurate advice concerning the application of Part IVA of the Employment Rights Act 1996.  His advice conflicts with Court of Appeal and EAT authority.  His advice concerns the application of Part IVA to a claim brought under section 103A of the Employment Rights Act 1996.   That is to say a claim of unfair dismissal by reason of making a protected disclosure. 

Mr Bowers contends that a claimant claiming unfair constructive dismissal under section 103A must first prove an unfair constrcutive dismissal before Part IVA ERA 1996 becomes relevant. 

 “103A      Protected disclosure: [square brackets our emphasis] 

An employee who is dismissed [as defined by s95 for the purposes of claiming the right under s94]  shall be regarded for the purposes of this Part as unfairly dismissed [contrary to s103A] if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure [as defined in Part IVA-s43A].”

In order to succeed in an unfair dismissal claim under section 103A, the claimant must have actually made a protected disclosure, which logically cannot  be established without applying the statutory tests at Part IVA. 

If Mr Bowers’ advice was correct (but it is not) in that you do not apply Part IVA to a claim brought under s.103A until after an unfair constructive dismissal is proved, then that unfair constructive dismissal could not possibly be by reason of making a protected disclosure because the Employment Tribunal could not have established that fact without first applying the test at Part IVA.