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12 February 2018

82: Employment Appeal Tribunal confirms that disclosures made purely out of self-interest are not protected under whistleblowing legislation

In Parsons v Airplus International Ltd, the Employment Appeal Tribunal (EAT) held that a disclosure made by an employee purely out of concern for her own liability was not a qualifying disclosure.

In order to be protected against dismissal or detriment under the whistleblowing legislation, a worker must have made a ‘qualifying disclosure’. This is a disclosure of information which, in the reasonable belief of the worker, is made in the public interest and shows that one or more of the six specified types of wrongdoing has occurred.

Ms Parsons was employed by Airplus International Ltd as its Legal and Compliance Officer from 17 August 2015 to 22 September 2015. She raised concerns that Airplus was in breach of its legal obligations by not having a current consumer credit licence or a Money Laundering Reporting Officer (MLRO), and did not accept Airplus’ explanation that neither the licence nor the MLRO was required. It was obvious that Ms Parsons’ concerns were motivated by fear for her own potential personal liability for breaches of company law. Airbus therefore changed her job title to Analyst for Regulatory Affairs and Contract Management. Various complaints were made about Ms Parsons’ rude and disrespectful manner when raising her concerns, culminating in an incident with the Managing Director when she queried whether key decisions were being minuted. Her employment was subsequently terminated due to her misconduct, including her irrational fixation on her personal liability, her inability to listen to colleagues, and what Airplus described as a ‘cultural mis-fit’.

The Employment Tribunal and the EAT both rejected Ms Parsons’ claim of automatic unfair dismissal mainly because her disclosures were made wholly in her own self-interest, and not in the public interest. The EAT noted that a disclosure does not have to be made entirely in the public interest in order to be protected, but it must be at least partially in the public interest. The EAT also confirmed that the Employment Tribunal was right to find that Ms Parsons’ concern about minute-taking was an enquiry made to ensure that she was protected on a personal basis, rather than a disclosure of information. In any event, Airplus was able to show that she had been dismissed for her misconduct, which was genuinely separable from the disclosures. It was significant that Airplus did not immediately decide to dismiss following Ms Parsons’ disclosures, but waited to see if changing her job title led to an improvement in her conduct.

This case is a reminder that self-interested disclosures do not necessarily prevent an employee from claiming whistleblower protection, but this must not be the sole reason for making the disclosure. The employee must have a reasonable belief that making the disclosure was also in the public interest. The employer in this case was able to demonstrate that the employee was dismissed for a reason which was genuinely separable from the alleged disclosures. However, this will not always be so straightforward, particularly for employees in compliance roles. Clear policies and procedures must be in place to deal with employees who raise matters which could be considered protected disclosures. Where an employee’s conduct or performance is also an issue, it is essential that all concerns are properly documented in order to be able to demonstrate that the reason for any dismissal or detriment is unconnected to the disclosure.

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