In the realms of whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA), establishing if a worker has made a qualifying protected disclosure is a key hurdle in determining whether they are protected from detrimental treatment. The question of identifying whether a disclosure attracts protection under PIDA has been long debated in the UK Courts and Tribunals. Another key issue is causation, so even if it is established that a qualifying disclosure had been made, was that the reason or principal reason for dismissal?
The recent Court of Appeal (“CA”) decision in Simpson v Cantor Fitzgerald Europe has provided some useful commentary in this area.
The claimant, Mr Simpson, was a salesperson on the respondent’s emerging markets sales desk. He was dismissed shortly after completing his probationary period. He claimed that he suffered various detriments and was automatically unfairly dismissed under s103A of the Employment rights Act 1996 because he raised protected disclosures relating to financial malpractice and regulatory breaches.
He referred to 37 separate alleged disclosures in 2015. His employer argued that Mr Simpson was dismissed because of a breakdown in trust due to his disruptive behaviour, poor attendance and time-keeping concerns which meant his colleagues found him “utterly impossible” to work with.
Mr Simpson’s claim was rejected as the first-instance Employment Tribunal concluded that none of his complaints were protected disclosures because (a) they were not specific enough to amount to qualifying disclosures and (b) none of them included information which Mr Simpson genuinely believed tended to show malpractice by the company. Rather, the Tribunal found that his motivation for raising them stemmed from his dissatisfaction with his commission payments. Although employees with mixed motives for making disclosures can be protected under PIDA, they still require to have a reasonable belief in the disclosure and that it is in the public interest; Mr Simpson failed to meet this test.
Mr Simpson appealed on several grounds, including that (i) the reason for his dismissal was his disclosures and (ii) the Employment Tribunal had failed to consider if all 37 disclosures cumulatively amounted to protected disclosures.
However, the Employment Appeal Tribunal (“EAT”) and the Court of Appeal (“CA”) subsequently dismissed his appeals.
Among other issues, the CA confirmed the following:
It agreed with the Tribunal and EAT’s conclusions that it was “utterly fanciful” for Mr Simpson to allege that his dismissal was due to him internally raising regulatory concerns. A claim under s103 ERA for automatic unfair dismissal cannot succeed where the genuine reason for the dismissal is not related to protected disclosures. The CA found that the genuine reasons for his dismissal were really the loss of trust and confidence the company had in Mr Simpson and his poor attendance record.
Mr Simpson’s allegations did not amount to protected disclosures because he did not have a genuine and reasonable belief of internal malpractice on the basis that his motivation for the allegations was really his dissatisfaction with his commission. Therefore, the disclosures failed to meet the public interest – a key ingredient for a disclosure to be protected under PIDA.
Multiple communications can collectively amount to a protected disclosure, even if each communication may not individually be a qualifying disclosure. Categories of "information" and "allegations" cannot be mutually exclusive when assessing whether they are protected disclosures in law. Whether this approach is appropriate will depend on the nature of the communications and the facts in each case. However, it will not always be an error in law for a Tribunal to fail to consider multiple communications together. In this instance, the Tribunal had already determined that none of Mr Simpson’s disclosures merited legal protection, whether they were read in isolation or alongside previous communications. Further, as the Tribunal held that the alleged disclosures were not the reason for the dismissal, the CA did not need to address the issue of whether a combination of his communications could be read together as amounting to whistleblowing disclosures.
The outcome of the decision of the CA in Simpson v Cantor Fitzgerald Europe has not made any fundamental changes to the established principles of whistleblowing law. However, cumulatively the various decisions in this case are likely to be referred to in future whistleblowing litigation as they offer a helpful and detailed analysis of this area of law.