Whistleblowing

11 July 2019

A protected disclosure is when a worker discloses information which they reasonably believe shows some sort of wrongdoing, such as a crime or breach of a legal obligation.

The disclosure must be believed by the worker to be in the public interest, and not simply for personal gain. A person making a protected disclosure is protected from any detriment or dismissal that stems from making those disclosures.

In Simpson v Cantor Fitzgerald Europe, the employee was employed as a bond salesman for less than a year. Colleagues found him confrontational and difficult to work with. He made various complaints, including allegations of malpractice, but also niggles about work allocation and colleagues. His colleagues got fed up with his constant complaints, poor attitude and bad timekeeping. HR got involved and he was dismissed.

The employee brought an employment tribunal claim, saying he was dismissed because he had blown the whistle on malpractice. He also claimed unpaid commission. The Employment Tribunal dismissed his claims. The judge described the alleged whistleblowing as cryptic, speculative, over-general and 'a figment of his imagination'. The tribunal felt the employee was motivated by his commission payments rather than any public interest.

The employee appealed, saying the tribunal had made legal errors. He also said the tribunal should have considered some of the alleged disclosures together, rather than considering each separately. He said the tribunal had distinguished too strictly between information (which can form part of a protected disclosure) and mere allegation or query (which cannot). The Employment Appeal Tribunal disagreed. Communications can be linked to create an overall protected disclosure, but that didn’t apply here as the employee didn't tell the tribunal that any were linked, and none appeared to be linked. The EAT also said that queries and allegations can in theory form part of a protected disclosure, but they must contain facts which point towards the relevant wrongdoing. In the employee's case, they did not.

Employers can take some comfort from this case. The employee did not have the necessary continuous service to bring a straightforward unfair dismissal claim. As many aggrieved employees do, he brought a claim which had no minimum service requirement (such as whistleblowing) to gain leverage against the employer in his commission claim. This case shows that mere allegation, without any factual basis, will not be enough. Neither will steps taken in self-interest, rather than the public interest.


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