Identifying the Legal Breach

04 January 2017

An employer who dismisses an employee because, or mainly because, they have made a protected disclosure (‘blown the whistle’) will find that that is automatically unfair. And a worker is protected from being subjected to any detriment for having made this type of disclosure.

Eiger Securities LLP v Korshunova

An employer who dismisses an employee because, or mainly because, they have made a protected disclosure (‘blown the whistle’) will find that that is automatically unfair. And a worker is protected from being subjected to any detriment for having made this type of disclosure.

But can you be sure that something is or isn’t a protected disclosure? The law says that it must be a disclosure of information and that the information must, in the employee’s reasonable belief, be in the public interest and relate to one of six types of failure – one of which is breach of a legal obligation. It’s always going to be fact-sensitive, and Ms Korshunova’s case was no exception.

She was a sales executive at the broking business, Eiger Securities (‘Eiger’). Eiger brokers used an online chat facility to liaise with traders in client banks. It was practice for brokers to share their passwords for their computers and for these conversations. Ms Korshunova complained that the managing director, Mr Ashton, had logged in in her name and traded with clients without making it clear that it was him, rather than her, that was doing so. She complained to him: “..... [M]y clients do not like that you talk to them pretending it is me when I am away for lunch”, she said (among other things).

Ms Korshunova changed her passwords and was eventually dismissed for gross misconduct. She claimed automatically unfair dismissal, as well as having been subjected to the detriment of some of her clients being taken away from her.

Ms Korshunova won at tribunal, but the Employment Appeal Tribunal (EAT) set aside a number of the tribunal’s decisions – including the decision that she had made a qualifying disclosure. Yes, there had been a disclosure of information; Ms Korshunova had told Mr Ashton that she believed what he was doing was wrong and she gave him new information – which was that her clients didn’t like it. However, the tribunal had not identified the legal obligation that she reasonably believed had been breached. There had to be something more than an assertion that certain actions were wrong.

As the EAT put it: "Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation."


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