Whistleblowing: Where are we up to?
“A protected disclosure means any disclosure which, in the reasonable belief of the worker making the disclosure, is made in the public interest
“A protected disclosure means any disclosure which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following…”
Thirty five words which can strike terror into the heart of an employer in the process of dismissing an employee who says “the reason you are doing this is because I blew the whistle” or “if you carry on along this path I’ll blow the whistle”.
There have been two recent cases – Chesterton Global v Nurmohamed and Parsons v Airplus International Ltd - which build on previous law and, on the face of it, assist the employer in establishing whether an individual has a valid argument.
As recently as 2007 (ten years is not too long in terms of case precedent) case law established that if an employee believed that the relevant wrong had been committed (or was or would be committed) then, even if he was wrong in that belief, this was not sufficient to render that belief unreasonable and deprive the whistleblower of protection (Babula v Waltham Forest College).
So an employee could say “I believe” and be protected, in relation to any alleged misdemeanour committed by the employer (however minor or unlikely), as long as a Tribunal ultimately found this belief to be objectively reasonable.
“In the public interest”: new case law
Chesterton Global v Nurmohamed
The words “in the public interest” were introduced solely to tighten the test and remedy the problem that the law was being used by people raising issues which were solely related to their own contracts. The first case to test the statute was Chesterton Global v Nurmohamed.
In this case, the Claimant was unfairly dismissed from a senior role with a firm of Estate Agents on the grounds that he had made a protected disclosure. He alleged that senior management were manipulating the accounts, which would result in a lower bonus being paid not only to the Claimant himself but to 100 other senior managers. The Employment Tribunal held that this was sufficient for the disclosure to be “in the public interest”. The Court of Appeal held that the Employment Tribunal was entitled to make this finding and suggested that, in order to assess whether something was “in the public interest” a number of factors must be considered, namely:
- The number in the group whose interest the disclosure serves; the more employees and/or others affected the more likely it is to be in the public interest;
- The nature of the interest affected and the extent to which the employee is affected by the wrongdoing disclosed; a trivial wrongdoing is less likely to be covered;
- The nature of the wrongdoing disclosed; disclosing deliberate (rather than inadvertent) wrongdoing is more likely to be in the public interest;
- The identity of the alleged wrongdoer; the larger or more prominent the wrongdoer the more likely disclosure is in the public interest (so that’s bad news for all larger employers and public bodies)
Given the fact that the disclosure no longer has to be “in good faith” and individuals could bring claims on a self-interest basis, it remained a concern that something which was, in essence, an internal matter could be deemed as whistleblowing with all the additional protections this tag gives.
Parsons v Airplus International Ltd
Positively however, in the very recent case of Parsons v Airplus International Ltd, the EAT has held that, in circumstances where the disclosure is purely in the employee’s own ‘self interest’ then it was not protected and could not be relied on to further a claim.
In this matter, Ms Parsons, an un-regulated Barrister, was employed as the companies Legal and Compliance Officer. She held this position from 17 August 2015 to 22 September 2015 when she was dismissed. The reason for dismissal, according to the company, was that she was rude and disrespectful to colleagues together with concerns that she had made allegations of “non-compliance” by her employer. She said that:
- The business did not have a Consumer Credit License;
- They had not appointed a Money Laundering Reporting Officer; and
- Minutes had not been kept in relation to key decisions.
In relation to the above, and significantly the final factor, Ms Parsons was concerned about her own circumstances and whether blame could be laid at her door. She could give no cogent reason why a CCL was required (it wasn’t). Furthermore, appointing an MLRO was not necessary. The dismissal, according to the company, was a result of her unacceptable behaviour and attitude. The Managing Director and her line manager considered that she had “left behind burnt soil pretty much everywhere after only six weeks in the job”.
The Employment Tribunal accepted the employer’s explanation. It found that the issues raised by the Claimant were not “qualifying disclosures”. It found that the reason for dismissal was that she was a “cultural misfit” not that she had raised protected disclosures.
This is perhaps at the extreme end of the “self interest” spectrum. It is almost inevitable that a whistleblowing claim will have an element of self-interest, as in the Chesterton case. It is the level and degree which will be the crucial, balancing factor. The burden of proof will remain on the employer to establish the reason for dismissal; and any dismissal where complaints raised by the individual form part of the basis for the decision will carry some risk. In the event that there is any suggestion of a decision being tainted by whistleblowing it is important to obtain specialist legal advice.
David Summers (firstname.lastname@example.org) is an Associate in the Employment, Pensions and Immigration Team and is based in Birmingham. If you have any questions, please do not hesitate to contact David or speak to your usual Weightmans advisor.