Employee concerns and whistleblowing

Can an employee’s concerns raised purely out of self-interest constitute a qualifying disclosure for whistleblowing purposes?

No, held the Employment Appeal Tribunal in the case of Parsons v Airplus International Limited UKEAT/0111/17, which upheld an employment tribunal’s finding that a legal compliance officer who made protected disclosures about compliance issues did so entirely out of concern for her own potential liability. Therefore, the whistleblowing legislation did not offer her protection.  

Background

Under the Employment Rights Act 1996, a worker who makes a ‘protected disclosure’ cannot be subjected to detriment or be dismissed by his employer because of his actions. In order to deem the disclosure as ‘protected,’ the worker has to show that they have made a “qualifying disclosure”. This is any disclosure of information that, in the reasonable belief of the worker making it, is made in the public interest and shows that one or more of the six specified types of wrongdoing has taken place, is likely to take place or is taking place. 

In the case of Chesterton v Nurmohamed, the Court of Appeal held that a disclosure does not have to be made entirely in the public interest in order to be protected; a self-interested or private disclosure could, therefore, still qualify for protection. However, disclosures made purely out of self-interest are unlikely to be protected.

The facts

Ms Parsons (P), a non-practising barrister, was employed by Airplus International Limited (Airplus) from 17 August 2015 as its Legal and Compliance Officer, subject to a six-month probationary period. She was dismissed by Airplus six weeks later, on 22 September 2015.

In early September 2015, P raised concerns that Airplus was in breach of its legal obligations by not having a current consumer credit licence and that the company did not have a Money Laundering Reporting Officer (MLRO). P did not accept Airplus’ explanations that neither a licence nor an MLRO were required. It was apparent that P was extremely anxious about her duties and feared that she would be personally liable if Airplus was in breach of any of its legal compliance obligations. She was upset and agitated during meetings with her line manager and worried that she might end up going to prison.

To allay her concerns, Airplus changed her job title to Analyst for Regulatory Affairs and Contract Management. However, despite this, her line manager and other members of the management team continued to express concerns about P’s ability to perform her role and her conduct. Shortly before her dismissal, various concerns were raised regarding P’s behaviour towards colleagues and, in particular, her rude, disrespectful and unhelpful manner when raising concerns. P also directly challenged the managing director of Airplus, questioning whether she knew how to run a company and querying whether key decisions had been minuted. Airplus subsequently terminated her employment due to her misconduct; namely, her irrational concerns over her own personal liability, and her approach to her work and those with whom she worked. P was described by Airplus as a “cultural misfit”.

P brought a claim in the employment tribunal for automatic unfair dismissal on the grounds that she had made protected disclosures. The tribunal rejected the claim for a number of reasons, including that P had not made any qualifying disclosures because they were raised solely in her own self-interest and therefore did not satisfy the whistleblowing test. The tribunal also held that the MRLO issue could not amount to a qualifying disclosure because Airplus were already aware of this issue. The tribunal found that she had been dismissed because of her conduct and for being a cultural misfit, which was genuinely separable from the disclosures.

P appealed to the Employment Appeal Tribunal (EAT).

Judgment

On appeal, Airplus conceded that the tribunal had been wrong to reject the MLRO issue as not amounting to a qualifying disclosure; the fact that Airplus already knew about it did not of itself prevent it from being protected. However, this concession did not affect the overall outcome of the case, as the EAT were satisfied that the tribunal had not erred on any other grounds.

The EAT dismissed the appeal holding that:

• P’s concerns about minute taking was not a “protected disclosure” because it did not disclose any information;
• The tribunal had correctly followed the guidance set down in Chesterton and was entitled to conclude that P’s disclosures – concerning the licence and MLRO – were only raised for her own self-interest, to ensure she was protected on a personal basis.
• The EAT was satisfied that the tribunal had made a clear finding that Airplus was primarily concerned with P’s conduct and behaviour after she had raised her concerns – namely her failure to give rational, cogent reasons for her beliefs, her fixation on her own personal liability and her inability to listen to her colleagues, rather than the substance of the whistleblowing. Therefore the reason for P’s dismissal was due to her manner of blowing the whistle and subsequent conduct, not the whistleblowing itself.

Comment

Following Chesterton, this case confirms that disclosures that are made wholly in the self-interest of the person making them are unlikely to qualify for protection. However, the case turned on its own unique facts and, consequently, it is likely to be unusual for an employer to be able to demonstrate motivation for raising of concerns is purely private or self-interest. Employers should be alert to the fact that disclosures motivated by self-interest may still qualify for protection if the whistleblower had a reasonable belief that it was also made in the public interest.

Importantly, in this case, Airplus’ decision not to immediately dismiss P following her disclosures regarding the licence and MLRO, but to wait to see if changing her job title led to an improvement in her conduct, was significant. Employers must be able to demonstrate that a decision to dismiss a whistleblower has no causal link to their whistleblowing, but is for some other legitimate reason such as conduct or performance. Employers should, therefore, ensure that they document all concerns regarding a worker carefully, so they can show that the reason for dismissal (or detriment) is entirely unconnected to the disclosure itself.

If you would like to discuss this briefing further or have any other questions around public interest disclosures, please get in touch with your usual contact in the Employment Team or speak to Joanna Burrows. You can find out more about our employment work on our website.

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