Whistleblowing protection may not be automatically available if a disclosure is made entirely in the employee's self-interest, the Employment Appeal Tribunal (EAT) has held.
The whistleblowing legislation requires there to be a reasonable belief of the worker making the disclosure that the disclosure "is made in the public interest". Previous case law suggested that this was a relatively low threshold, but in the case of Parsons v Airplus International Ltd 2017, the EAT found that a disclosure entirely in self-interest did not qualify for protection.
The case in detail
In this case, the Claimant was a qualified non-practising barrister. She started working for the Respondent as its Legal and Compliance Officer subject to an initial six-month probation period. The Claimant had no compliance qualifications or experience. In the early months of her employment, she raised various queries in relation to her duties, though did receive training and coaching in her role and other support and reassurance.
However, the Respondent became concerned that the Claimant needed to be clear that what she was advising might be wrong. The Respondent also felt that she was failing to address matters in a professional way due to an irrational fear of facing personal liability. As the Claimant continued to pursue certain issues (that she later categorised as whistleblowing disclosures) after receiving clear explanations, the Respondent became increasingly concerned that she was unable to explain the bases of her views and her conduct was confrontational, rude and unhelpful. Concerns and complaints also started to be voiced by other staff members.
One of the disclosures made by the Claimant was about the Respondent not having an up-to-date Consumer Credit Licence. The Claimant advised that a CCL should be sought as soon as possible, asking them to provide written confirmation that she would not be liable for any non-compliance. She alleged non-compliance on the company's part without fully informing herself of the facts and/or the law as the Respondent did not provide products that would require CCL compliance. The Claimant was further reassured there was no question of her being held personally liable or going to prison but was concerned about her response. Further, to address her concern about any potential personal liability, it was agreed the Claimant's job title should change to Analyst for Regulatory Affairs and Contract Management.
The Respondent dismissed the Claimant after no improvement was seen and cited 'cultural misfit'. As the Claimant did not have the required length of service for unfair dismissal, she raised a claim under the automatically unfair reasons – allegedly being dismissed for making protected disclosures.
The decision of the tribunal
The Employment Tribunal found that because some of the disclosures were made the Claimant's in self-interest and the Respondent was of aware of the alleged non-compliance, they did not fall into the protected disclosure category. However, the ET further went on to find that the reason for dismissal was the Claimant's conduct rather than the disclosures separating the two issues. The claim was dismissed.
Both the ET and the EAT held that certain disclosures made by the Claimant were not intended to be in the public interest. Rather, she was worried about her personal liability and potential criticisms of her in the workplace. There was no feature of public interest at all. This, then, rendered these disclosures outwith the whistleblowing protection.
Further, the EAT found that the investigation by the Tribunal led that there was no link between the protected disclosures and her dismissal. The actual reason for dismissal was her response and conduct after the disclosures. The Respondent found she was unmanageable in her conduct and were concerned she was unable to effectively do her job. As the Claimant's conduct did not improve after the change in job title, the dismissal was a conduct matter which was separable from the disclosures. Therefore, the appeal was dismissed as the EAT agreed that the matters were able to be separated.
What does this mean for employers and whistleblowing policies?
This is an interesting case but turns on its own facts, and featured apparent extremes of behaviour. Employers should still be cautious in their treatment of employees who seek to use their whistleblowing policies and seek specific legal advice if they think that either malicious allegations are being made or the conduct of the employee is falling short of required standards.
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