No whistling while you work
Ian Machray explains a recent decision on whether an employee making a disclosure purely in self-interest is protected against dismissal.
Under whistleblowing legislation, a worker is protected against being dismissed as a result of making a disclosure which, in their reasonable belief, is made in the public interest and tends to show that a specified type of wrongdoing has or is likely to take place. A recent case in the Employment Appeal Tribunal (EAT) considered whether a worker’s disclosures were made purely in self-interest and therefore not protected. This follows a case we reported on in July.
Ms Parsons was employed as a Legal and Compliance Officer by Airplus International Limited for just under a month before she was dismissed following complaints from colleagues about her rude and irrational manner. Management were also concerned that she jumped to conclusions without researching the facts and/or the law.
Ms Parsons raised a number of issues during her employment including a concern that Airplus was in breach of company law obligations by not keeping minutes of compliance decisions and the fact that the company did not have a Money Laundering Reporting Officer. In raising these concerns, Ms Parsons made it clear that she was concerned about her personal liability. Airplus changed her job title to alleviate her fears. However, her disrespectful manner to her colleagues and her irrational decision making continued and Airplus dismissed her, citing ‘cultural misfit’.
Ms Parsons brought a claim that she had been automatically unfairly dismissed for having made protected disclosures. The tribunal rejected her claim and the case was appealed to the EAT.
The EAT dismissed the appeal stating the tribunal was entitled to find that the reason Ms Parsons raised her concerns was wholly in her own self-interest and the disclosure was not protected due to this. The EAT was also satisfied that Airplus was not concerned about the substance of the disclosures but was dismissed due to her poor working performance and behaviour.
Whilst the decision establishes that a disclosure made purely in self-interest does not qualify as a protected act, it is a reminder to employers that a disclosure made in self-interest will qualify if it is also made in the public interest. Employers should also note that if they dismiss an employee soon after they have raised a concern about wrongdoing there should be good evidence showing that there is no link between the dismissal and the concerns raised.