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Scope of whistleblower protection

The Employment Appeal Tribunal in the case of Parson v Airplus International Ltd has confirmed that a disclosure made by an employee in their own self-interest will not qualify as a ‘protected disclosure’ under the Employment Rights Act 1996 (ERA).

Background

The Claimant was employed in a compliance role by Airplus International Ltd (Airplus). In that capacity the Claimant raised concerns about regulatory requirements she felt were not being met and which she was concerned she may be held personally liable for. Airplus disagreed with her assessment and asked her to clarify the basis on which she believed there were breaches which she was not able to do.

The Claimant was subsequently dismissed by Airplus on the basis of complaints from colleagues of rude behaviour and her inability to explain the breaches she reported.

The Claimant brought a claim of automatically unfair dismissal arguing she had been dismissed for making “protected disclosures”.

The Law

Under the ERA an employee is protected from being subject to detriment (less favourable treatment) or dismissal where the reason or principal reason is that they have made a protected disclosure.

The legal test for a “protected disclosure” requires an employee to:

  • Make a disclosure of information that he/she reasonably believes shows one or more specific failings provided from the ERA;
  • Make the disclosure to one of the categories of specific people listed which can include an individual’s employer; and
  • Hold a reasonable belief that the disclosure is made in the public interest.

Decision

Both the Tribunal and Employment Appeal Tribunal rejected her claim and held that the reason for her dismissal was not the disclosures she alleged she had made, but her manner and conduct. The Tribunal also found that the disclosures did not qualify as “protected disclosures” because she made them out of concern for her own liability rather than any belief they were in the wider public interest.

Comment

Disclosures can be made for a variety of reasons but this decision highlights that an employee must also be able to demonstrate that the public interest was amongst one of any number of reasons they provide for having made a disclosure in order for it to qualify as a “protected disclosure”. The impact of this decision in practice is unclear as it seems unlikely that many cases will find a disclosure was made solely for personal reasons but, that if an employee does seek to gain protection, he/she must be able to demonstrate they actually held a belief that the disclosure was in the public interest – a hypothetical belief will not be sufficient.

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