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Whistleblowing and dismissal: It’s not what you say it’s the way that you say it

In the case of Parsons v Airplus International Limited (“Airplus”) DWF were acting for Airplus.  The EAT found that an employee who made a disclosure purely in her own self-interests was not protected as a whistleblower under s43B of the Employment Rights Act 1996 (“ERA”), and further confirmed that it is possible to separate the fact of the making of a protected disclosure from the manner that it is made.

Background

The Employee, Ms Parsons, was employed as a Legal and Compliance Officer for Airplus, subject to a six month probationary period. She was dismissed following a number of complaints from colleagues that she was “confrontational, rude and unhelpful”.

Those managing the Employee were concerned that she was raising issues with regard to non-compliance without fully appraising herself of the law and the facts. The Employee made a number of unfounded allegations to Airplus and made it clear she was concerned about her own personal liability.  Management’s main concern was the manner in which the allegations were raised, in particular, the Employee’s rude and unhelpful manner. The allegations were varied but centred mainly around compliance issues.  Although such allegations may appear seemingly legitimate issues to raise, in reality there was no substance behind any of the complaints.

Despite agreeing to change the Employee’s job title to “Analyst for Regulatory Affairs and Contact Management” to try and alleviate her concerns with regard to her own liability, there was still no improvement in performance. As a result Airplus dismissed the Employee explaining that there was a “cultural misfit”.

The Employee brought a claim for automatic unfair dismissal under s103A of the ERA on the basis that she had made protected disclosures. The Employee did not have sufficient service to bring a s98 unfair dismissal claim.

Employment tribunal

The tribunal found there was no causal link between the disclosures made and Airplus’ concerns and ultimate dismissal. The real issue was the Employee’s reaction to her own disclosures; namely, “her inability to give rational and cogent reasons for her belief, her failure to investigate the background, her irrational fixation on, and fear of, her personal liability, her inability to put forward any constructive proposals for a resolution of an issue, and her failure to listen to the views of others”.  The tribunal therefore rejected the claim.

EAT

The Employee’s appeal to the EAT was unsuccessful. The Employee’s concerns related solely to her own interests.  Although the Court of Appeal in Chesterton Global Limited v Nurmohamed made it clear that a disclosure does not have to be entirely in the public interest (and so a self-interested disclosure can still count), in this case according to the tribunal’s finding of fact, her disclosure was purely in her own interests and so did not meet the legal test.

Further, the EAT found that the reason for the dismissal was not the disclosure itself but how she handled the situation. The Employee’s unresearched assumptions and demands, conduct at meetings and failure to give rational, cogent reasons for her beliefs all led to her dismissal.

Comment

The EAT made it clear that when it comes to whistleblowing it is permissible (based on the facts) to separate what you say from the way that you say it. The Employee could not act in an unreasonable manner and then seek to rely on unfounded whistleblowing allegations to protect her against any dismissal.  Crucially, the Employee’s purely self-interested motives took the disclosures outside of the whistleblowing sphere.

The case is also of particular importance with regard to the principle of separability. If the EAT had not found in Airplus’ favour, it would appear to be near impossible to manage or dismiss any employee in a compliance role as inevitably almost everything they would raise would be related to protected disclosures.

Employers will be pleased to know that employees cannot conduct themselves in an inappropriate, irrational and self-interested way and then seek to rely on the whistleblowing protection under s43B ERA, even if allegations of a whistleblowing nature are made.

To read the full transcript please click here

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further