In Parsons v Airplus the EAT has ruled that a Legal and Compliance Officer did not make a protected disclosure when she raised concerns purely out of self-interest. Although she raised different concerns which qualified as protected disclosures, she was not dismissed for making those disclosures, but for the way in which she raised concerns and her conduct and behaviour towards colleagues.

Background

To claim whistleblower protection, an employee must first disclose information which tends to show certain types of wrongdoing and (since the law was amended in 2013) must act in the reasonable belief that the disclosure is in the public interest. In Chesterton Global Ltd v Nurmohamed the Court of Appeal ruled that, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it. The Court of Appeal was inclined to think that belief did not have to form any part of the motivation, pointing out that "in the belief" was not the same as "motivated by the belief".

It is automatically unfair to dismiss an employee for making a protected disclosure. However, caselaw has established that there is a distinction between dismissing an employee for making a protected disclosure and dismissing the employee for the manner or the way in which an employee goes about making the disclosure. If the employee's behaviour is genuinely separable from the protected disclosure it can be a lawful basis for dismissal.

Decision

In this case, the claimant was employed as the Legal and Compliance Officer of a small company, but was dismissed after just a few weeks in the job. The Tribunal rejected her claim that she was automatically unfairly dismissed for making a protected disclosure and the EAT upheld this decision.

The claimant raised concerns about whether the company was taking minutes of key decisions but made clear that the reason she was asking was to ensure that she was personally protected in the event that her advice was not followed. According to both the Tribunal and the EAT, these actions were solely in her own interest and she did not reasonably believe them to be in the public interest, so this was not a protected disclosure.

The claimant also raised concerns over the fact that the company's consumer credit licence had expired (although it was not clear that they needed one). This was a protected disclosure, but the Tribunal and EAT ruled that the claimant was not dismissed for making it. Instead, she was dismissed for the way in which she raised this and other issues. The claimant had an irrational fixation with her personal liability, failed to give reasons for her concerns about non-compliance and to research the position properly and was rude to colleagues. She was dismissed for her conduct and behaviour, which caused the company to doubt that she could be effective in her job.

Comment

The EAT appear to have accepted the Tribunal's conclusion that, because the issue about minute-taking was raised solely in the claimant's self interest, she did not reasonably believe it was in the public interest. However, the Court of Appeal in Chesterton did not think this would necessarily always be the case, since a worker can raise an issue out of self-interest but still reasonably believe that raising it is also in the public interest. A well-advised employee will simply assert that they did believe the issue to be in the public interest, even if that was not their main motivation. This case may therefore be an unusual example of a claimant failing to meet the public interest requirement.

However, this case is also a good example of when it can be lawful to dismiss an employee for the manner in which they raise their concerns. The employer in this case pointed out that, for someone in a compliance role, almost everything they raised would be related to matters that could amount to protected disclosures and that it was particularly important for the employer to be allowed to separate their behaviour from the disclosures to allow for some degree of managerial scrutiny.