Summary: Is a disclosure made purely in an employee’s own self-interest a “protected disclosure” under the whistleblowing legislation?
No, says the EAT in Parsons v Airplus International Limited available here.
Facts: The employee, Ms Parsons (a qualified non-practising barrister) was employed by Airplus International Ltd, the employer, as its Legal and Compliance Officer. The job was subject to a six month probationary period. Airplus had found it hard to recruit into the role and had accepted Ms Parsons’ application although she had no compliance qualifications or experience.
Shortly after starting work, Ms Parsons raised concerns about Airplus’s consumer credit license, advising that a license should be sought as soon as possible. Ms Parsons also asked for confirmation that Airbus would get such license and that she would not be personally liable for any non-compliance. It was, however, unclear why Airplus would need a consumer credit license, as it did not provide any consumer products. Ms Parsons’ manager emailed her, advising her not to send warnings on non-compliance without knowing the facts.
A meeting was arranged between Ms Parsons and her manager, at which this incident was discussed. Ms Parsons was very upset, crying and saying that she did not want to go to prison. Her manager assured her that there was no question of her being held personally liable or going to prison, but that he was concerned about her response.
To address her concern about any potential personal liability, Ms Parsons’ job title was changed to Analyst for Regulatory Affairs and Contract Management. However, her line manager was concerned that Ms Parsons did not appear considered or commercial in her approach.
In the following weeks, various complaints were made about Ms Parsons’ rude and disrespectful manner when raising concerns. In particular on one occasion, Ms Parsons challenged the Managing Director in an aggressive way, asking “do you know how to run a company?” and querying whether key decisions were minuted.
Following this exchange, the Managing Director met with Ms Parsons’ line manager who concluded that there had been insufficient improvement in Ms Parsons’ performance and conduct since the initial concerns raised and following the change in job title. Her line manager considered that Ms Parsons “left behind burnt soil pretty much everywhere after only six weeks in the job“. Ms Parsons’ employment was terminated with two weeks’ pay in lieu of notice on the basis that she was a “cultural misfit“.
Ms Parsons brought a Tribunal claim, asserting that she had been automatically unfairly dismissed for having made protected disclosures. Airplus 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.
The Tribunal rejected Ms Parsons’ claim. The Tribunal 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 Ms Parsons had made her disclosures purely out of self-interest. Essentially, Ms Parsons was only concerned about her personal responsibility and liability and nothing else. Therefore, her disclosures did not qualify as “protected disclosures”.
The EAT upheld the Tribunal’s finding that she had not made the disclosures in the reasonable belief that they were in the public interest. However, the EAT 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.
Implications: This decision is helpful to employers, in that it confirms that there does need to be at least an element of belief that the disclosure is being made in the public interest in order to be protected.
However, employers should exercise caution, as this case turns on its facts and does not open the door to dismissing employees who raise concerns out of self-interest. It will be unusual for an employer to be able to provide such strong evidence that disclosures have been made purely in self-interest and not at all in the public interest.