A worker who has made a protected disclosure is protected by whistleblowing legislation from being subjected to a detriment or being dismissed because they made the disclosure. In order to be protected, a worker must have made a qualifying disclosure. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place.
In a recent case, the UK courts decided that a disclosure made in a worker’s own self-interest may also be also be made in the public interest.
In this case, Ms Parsons was employed as a Legal and Compliance Officer. Shortly after her employment began she expressed concerns about facing personal liability if her employer was in breach of its legal obligations. In order to allay her fears the employer changed her job title. However, concerns were raised that she was not considered or commercial in her approach, and about the rude and irrational manner in which she raised concerns. She was subsequently dismissed, after only around 6 weeks’ employment, and brought a claim that she had been automatically unfairly dismissed having made protected disclosures.
The EAT decided that Ms Parsons raised compliance issues purely out of concern for her own potential liability and not in the public interest, and so did not make qualifying disclosures for the purpose of whistleblowing protection. They also concluded that the reason for her dismissal was not that she had raised concerns but that she had behaved in a rude and irrational manner when communicating her concerns. As a result, she had not been unfairly dismissed.
Where an employee is in a compliance role, almost every issue they raise will relate to matters that may amount to a protected disclosure. In deciding to dismiss a person in a compliance or similar role, it will be particularly important for the employer to be able to show that the reason for dismissing them is genuinely separate from the fact of them raising concerns.
It is important to remember that, although in this case the tribunal made no finding that Ms Parsons’ disclosures were made in anything other than her own self-interest, in other cases the employee may be found to have made protected disclosures where they raise concerns partly in their own self-interest and partly in the wider public interest.
Parsons v Airplus International Ltd UKEAT/0111/17/1310