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Whistleblowing Disclosure to Protect Employee’s Own Interests Was Not a Protected

In a recent case the Employment Appeal Tribunal (“EAT”) considered whether an employee had made a whistleblowing or protected disclosure when it was made out of concern for her own potential liability.

Background

For a worker to be protected against detriment or dismissal under the whistleblowing legislation they must have made a qualifying disclosure. A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker who is making it, is made in the public interest and which tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place.  Examples of wrongdoing are criminal offences, breaches of any legal obligation or danger to the health and safety of an individual. A worker must satisfy all aspects of the definition in order to be protected.

Where a worker is dismissed and the reason for that dismissal is the making of a protected disclosure, the worker is regarded as having been automatically unfairly dismissed. The worker does not have to have completed a qualifying period of employment to bring a claim for whistleblowing.

The EAT case of Parsons v Airplus International Limited involved a legal compliance officer who, during her employment, raised concerns that Airplus was in breach of its obligations. The Claimant was a non-practising barrister with no compliance qualifications. She had expressed fears early on in her employment about facing personal liability if her employer breached any of its obligations. During her employment, she raised various concerns, for example that her employer did not having a current consumer credit licence and that they did not have a Money Laundering Reporting Officer.

During her employment, various complaints were raised about Parsons’ rude manner when raising concerns and she was dismissed from her role after 6 weeks for work performance and conduct issues relating to the complaints. Parsons brought a claim in the Employment Tribunal (“ET”), asserting that the reason for her dismissal had been that she had made protected disclosures during her employment.

Decision

The ET rejected Parsons’ claims confirming that the matters raised were not qualifying disclosures and therefore she couldn’t claim automatic unfair dismissal. They confirmed that the issues raised were raised solely in her own self-interest, to protect herself. They found that the genuine reason for dismissal was due to her conduct and that she had behaved in a rude and irrational manner when communicating her concerns. Parsons appealed the decision to the EAT.

The EAT agreed with the earlier Tribunal. They held that the Tribunal were correct in coming to the decision because Parsons did not reasonably believe any of the issues raised to be in the public interest and instead acted to protect herself only. They further confirmed that a disclosure does not have to be made entirely in the public interest to be a qualifying disclosure, but in this case self-interest was the sole reason for any issues raised and the public interest test was therefore not satisfied.

Comment

This case is a useful reminder of what a worker must demonstrate in order to be successful in a whistleblowing claim and provides additional clarity as to what is meant by “in the public interest”. It is important to remember that where a decision is made to dismiss a worker, and that worker has raised issues which could amount to protected disclosures, an employer is careful to ensure that the genuine reason for dismissal is not the disclosures and is truly separate. 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership