The Employment Appeals Tribunal has confirmed that a disclosure made purely in the employee’s own self-interest will not be a “protected disclosure” under the whistleblowing legislation. Whilst a disclosure need not be made solely in the public interest, there needs to be at least an element of belief that the disclosure is being made in the public interest in order to be protected.
In this case the employee’s role encompassed responsibility for compliance matters. She raised various concerns with the company about regulatory requirements she did not think were being met. The employer thought she was wrong in her concerns and tried to get her to clarify why she thought there were breaches, however she was not able to provide that clarification and remained concerned about the personal liability she would have for any breaches.
The employer said she was dismissed following complaints from colleagues about her rude manner and due to the company’s concerns that she could not give cogent reasons for why she believed it was non-compliant. However, in bringing her claim, the employee argued that she had been dismissed as a result of having made protected disclosures and that the dismissal was therefore automatically unfair under the whistleblowing legislation.
The Tribunal rejected her claim and this was upheld by the EAT. The Tribunal had found that the reason for the dismissal was not the disclosures, but her manner and attitude. In any event, the disclosures were not made in the public interest. Rather, the Tribunal found that she had made her disclosures purely out of self-interest – essentially, she was only concerned about her personal responsibility and liability and nothing else. Therefore, her disclosures did not qualify as “protected disclosures”.
The EAT found that the Tribunal was entitled to reach this conclusion. It reiterated that a disclosure can be made for many reasons and provided that the public interest is included in those reasons, the disclosure will be protected. However, that did not prevent the Tribunal finding, as in this case, that a disclosure had not actually been made in the public interest at all.
It seems unlikely that many cases will find that disclosures have been made purely and solely in self-interest as most individuals will have mixed motives, or at least be able to convince a Tribunal that they did, even if they didn’t express it at the time. This is likely to be of some comfort to compliance managers. The case will also be of comfort to employers dealing with disclosures by employees as recent case has suggested that the law change intended to remove the protection for disclosures about an individual’s own contractual terms might not have had that effect.