Disclosures made purely in self-interest are not protected
In Parsons v Airplus International Ltd , the Employment Appeal Tribunal (EAT) has provided useful guidance on the scope of whistleblowing legislation, in particular where a disclosure is made in the self-interest of an employee.
Ms Parsons was employed as a Legal and Compliance Officer. From the start of her employment there were concerns about her manner, in that colleagues found her confrontational, rude and unhelpful.
Ms Parsons raised a number of issues about Airplus and whether it was complying with its legal obligations. However, Ms Parsons was unable to explain the legal basis for her views. In raising the concerns, Ms Parsons made clear that she was concerned about her own personal liability for any breaches.
After attempting to reassure Ms Parsons by changing her job title to remove the focus of responsibility for compliance and offering her training, Airplus did not see any improvement in her behaviour and dismissed her, due to what was described as a "cultural misfit".
Ms Parsons brought Employment Tribunal (ET) proceedings, complaining that the dismissal was automatically unfair as it was due to the protected disclosures she had made.
ET and EAT decisions
The ET rejected Ms Parsons’ claims. The ET found that the disclosures were made solely in Ms Parsons’ self-interest, namely her concern about her personal liability. The ET commented that Ms Parsons did not, at the time she made the disclosures, have in her mind that the disclosures were also concerned with a matter of public interest. Therefore, they did not constitute qualifying disclosures.
In any event, the ET found that there was no causal link between the disclosures and Ms Parsons’ dismissal. It was satisfied that she was dismissed for her conduct and not because of the concerns she raised about the company. On appeal, the EAT upheld the ET’s decision.
What to take away
Whilst a disclosure which is made in the self-interest of a claimant and the public interest can constitute a qualifying disclosure, this case clarifies that a disclosure which is made purely in the interest of the discloser will fall short of the legal requirements and the discloser will not be entitled to whistleblowing protection.
For employers faced with potential whistleblowing disclosures, it is important to investigate the background of the matter in order to establish how to proceed. Where self-interest is identified as the only reason for a disclosure, this case confirms that employees may well not be entitled to rely on the legal protections afforded to whistleblowers. We recommend that employers ensure they are able to evidence clearly where this is the case.
Employers should always be mindful that there are often many strands to a disclosure and where the potential for public interest is identified by the employer, the matter should be treated as one of whistleblowing regardless of the fact that the employee may also have made the disclosure to protect him or herself.
The decision also reiterates the point that there is a distinction to be made between the decision to dismiss because of the disclosure and the conduct of the employee. In this case, it was not what Ms Parsons was raising, but the way in which she was raising it and then conducting herself which led to her dismissal.
Further information on this case, please contact Rachel Luddem, Andrew Uttley or Bridget Prosser.