The claimant was a sales executive in a broking business. She objected to the managing director using her Bloomberg Chat function to conduct trades without informing the other trader that he was using her terminal. This meant that the other party to the trade thought that they were dealing with the claimant. She complained about this, changed her password in breach of the employer's procedures and was subsequently dismissed for gross misconduct. She claimed that she had been automatically unfairly dismissed for blowing the whistle on individuals sharing passwords, which FCA guidance suggests is poor practice. The tribunal accepted that she had made a protected disclosure and had been dismissed as a result.
That decision was overturned by the EAT. The tribunal had failed to consider whether she "reasonably believed" that the employer was in breach of a legal obligation. This is a pre-requisite to being protected as a whistleblower, although an employee does not necessarily need to be correct that the employer has breached a legal obligation – employees are not expected to be legal experts.
The tribunal should have identified which legal obligation the employee thought had been breached. In some cases the conduct complained of will plainly be in breach of a legal obligation. Here it was not obvious that the managing director's actions were a failure to comply with a legal obligation, as opposed to industry guidance. It was impossible for the tribunal to assess whether the claimant's belief was reasonable without first identifying the nature of the legal obligation that was said to have been breached. The case was remitted to a new tribunal to decide whether the claimant had made a protected disclosure, and, if so, whether she had been subjected to a detriment or dismissed as a result.