In this case, the EAT held that a tribunal had erred in its approach to considering whether there had been a breach of a legal obligation.
Ms Korshunova was employed by Eiger Securities LLP, a broker business, as a sales executive. Mr Ashton was the managing director of Eiger. Eiger used Bloomberg Chat to liaise with traders at its client banks, and had a practice of brokers sharing their passwords for Bloomberg Chat and their computers.
Ms Korshunova returned from breaks on three occasions to find Mr Ashton at her computer, using Bloomberg chat, under her identity. On the first two occasions, she changed her password, and Mr Ashton asked IT to unlock her computer. On the third occasion, on 14 May, Ms Korshunova challenged Mr Ashton, saying "It is wrong for you to log in under my name when I am not in the office and trade under my name without making it clear that it is not me who is making the trade and identifying that it is you. Yes, and my clients do not like that you talk to them pretending it is me when I am away for lunch."
Mr Ashton again asked IT that day to unlock Ms Korshunova's computer. He told Ms Korshunova by text that changing her password without telling him would be gross misconduct.
Two months later, the accounts of three of Ms Korshunova's clients were moved to junior brokers.
Following two trading errors, Ms Korshunova was invited to a disciplinary meeting for "failure to follow instructions and poor performance". After an argument with Mr Ashton, she was suspended, and she closed her computer before leaving. She was subsequently advised that a further charge of changing her Bloomberg password without authorisation was to be added to the initial charges. She was ultimately dismissed for gross misconduct. This was stated to be for insubordination by refusing to carry out reasonable instructions from an immediate superior (in the form of misusing Eiger's software/hardware by switching off her computer and changing passwords without notifying her superiors) and incorrect price quoting to customers which resulted in financial loss. Her internal appeal was rejected.
Ms Korshunova did not have two years' continuous employment, so could not bring an unfair dismissal claim. She claimed that her challenge to Mr Ashton on the 14 May was a protected disclosure, and that she was therefore protected as a whistleblower, and had been subjected to a detriment when her clients were taken away from her. She also claimed that she had been automatically unfairly dismissed, as the result of making a protected disclosure on 14 May.
The employment tribunal upheld Ms Korshunova's claims. To be protected by whistleblowing legislation, a disclosure of information must, in the reasonable belief of the worker, be in the public interest and tend to show, among other alternatives, that a person has failed to comply with a legal obligation. Other than in obvious cases, the source of the legal obligation should be identified and be capable of verification by reference to statute or regulation. Here, the ET had found that Ms Korshunova "believed that there must be a legal obligation" to inform people who they were dealing with, and that she had a reasonable belief that what she was saying was true and applicable in the industry. Eiger appealed the decision.
The EAT held that the legal obligation in this case was not obvious, and that the source of the legal obligation should have been identified, and it had not. The court said that "the identification of the obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong." The EAT held therefore that the tribunal had failed to decide whether and, if so what, legal obligation Ms Korshunova believed had been breached. Accordingly the EAT allowed the appeal and remitted the claim for consideration to a fresh tribunal.
What does this mean for employers?
This decision is a strict reading of the whistleblowing legislation, and underlines the complexity of this area of law. It is a useful decision for employers, emphasising that workers claiming protection under whistleblowing legislation in relation to a breach of a legal obligation will have to show breach of an actual legal obligation, rather than "just" a belief that actions were immoral, undesirable or in breach of guidance.