In recent years, much public attention has given to the issues concerning

  • The use of confidentiality agreements / NDAs and private dispute resolution processes in cases of alleged abuse by employers
  • The concept of ‘SLAPPs’ – allegedly abusive legal proceedings

The Court of Appeal’s recent decision in Rogerson v Erhard-Jensen Ontological / Phenomenological Initiative Ltd [2025] EWCA Civ 1547; [2025] WLR(D) 614 touches upon this territory through the technical lens of the concept of judicial proceedings immunity.

The essential background is this

  • Mr Rogerson was employed to work in London at the residence of a Mr Erhard by a Singaporean charitable company associated with Mr Erhard. 
  • In 2019, Mr Rogerson resigned from his employment and alleged that Mr Erhard had been physically and verbally abusive. 
  • In July 2021, the company brought an arbitration claim against Mr Rogerson in Singapore, alleging breach of a Confidentiality and Independent Consulting Agreement and seeking £50,000 liquidated damages and a restraining injunction.
  • In November 2021, Mr Rogerson brought an employment tribunal claim in the UK, alleging that the bringing of the arbitration amounted to subjecting him to a detriment on the ground that he had made a protected disclosure (‘blown the whistle’) about the alleged abuse. Employees have a statutory claim in such circumstances.

The company sought to dismiss this claim without a substantive hearing on the ground that commencing an arbitration is not capable in law of amounting to a ‘detriment’ because of the concept of judicial proceedings immunity.

Mr Rogerson had the better of that argument at first instance, but the Employment Appeal Tribunal reversed that: [2024] EAT 135; [2025] 1 WLR 529; [2025] ICR 333. The Court of Appeal has now unanimously allowed Mr Rogerson’s appeal: [2025] EWCA Civ 1547; [2025] WLR(D) 614. Lady Justice Andrews gave the main judgment, with which Lady Justice Elisabeth Laing and Lord Justice Males agreed.

In reaching this conclusion, the Court of Appeal’s reasoning was as follows.

First, ‘detriment’ is not defined in the statute and is to be given ‘its ordinary meaning of harm or damage.’ There are no express exceptions in the statute. And ‘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.’

Secondly, the court rejected the notion that there are policy reasons to prevent a judicial or arbitral proceeding from being treated as a detriment. Given that the arbitration claim was expressly targeting an alleged breach of confidentiality, the court also noted that the confidentiality provision relied upon would have ineffective to prevent a protected disclosure and that the public policy ground under the New York Convention would prevent the foreign arbitral award from being enforceable in the UK, regardless of the governing law of the confidentiality agreement.

Thirdly, the court considered a number of authorities on the topic of judicial proceedings immunity and concluded that the concept has no application here. The employer argued that the relevant legal principle was that ‘parties should be free to initiate proceedings without the fear of being sued for doing so.’ The court disagreed:

‘That is a novel proposition, which derives no support from the authorities, and indeed appears to me to be contradicted by them. I also consider that it is incorrect as a matter of principle.’

The court’s analysis of the case law on immunity is that it protects statements made in proceedings (for example, witnesses cannot be sued for their testimony) not to acts done in proceedings. 

‘In the present case, the cause of action is not founded on statements made in the request for arbitration or in the arbitration itself. The act complained of by Mr Rogerson is the act of initiating the arbitral proceedings. That is what causes the detriment. That act does not fall within the core immunity, any more than the act of initiating proceedings in breach of an agreement to arbitrate, or in breach of an exclusive jurisdiction clause, would fall within it. Whilst it is true that the arbitral proceedings are commenced by the sending of a document, namely, a request for arbitration, statements made in that document are not the acts which give rise to the detriment complained of.’

The court’s conclusion was therefore that there was no reason to think that an employer should be immune from a claim of this nature just because the detriment consists of bringing legal proceedings, and that such a conclusion would seriously undermine the statutory right not to be retaliated against.

It remains to be seen whether the employer will seek to take the case to the Supreme Court.

In the meantime, though, the case is interesting as an illustration of judicial awareness of how legal processes may be used oppressively. 

The Court of Appeal’s reasoning makes repeated reference to the practical realities of the situation, in marked contrast to the more conceptualist reasoning of the EAT.

A couple of points of practical rather than strictly legal interest are that:

  1. The court records that it asked to see the request for arbitration, that Mr Rogerson consented to this but that the employer refused. 
  2. Mr Rogerson was represented by directly-instructed junior counsel acting pro bono, whereas the employer had a KC, junior and a leading law firm.

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