A UK based employee who raised compliance concerns because she was worried about her own potential liability was not protected as a whistleblower as she did not reasonably believe the disclosures to be made in the public interest. A disclosure does not have to be made entirely in the public interest in order to be protected and so may be protected where there is also an element of self-interest. However, it was crucial in this case that the employment tribunal had found that the employee had not made the disclosures in anything but her own interest. In addition, she was not dismissed for raising the concerns but due to the rude and irrational manner in which she raised them and how she conducted herself thereafter.
Facts
In Parsons v Airplus Limited, Ms Parsons was employed as a Legal and Compliance Officer. She was a non-practising barrister with no compliance qualifications or experience. Right from the start of her employment she was anxious about her duties and expressed fears about facing personal liability if Airplus breached its legal obligations. She raised concerns that Airplus was breaking the law by not having a consumer credit licence (although it was far from clear that it needed one) and by not having a Money Laundering Officer (which Airplus did not believe was required). She also challenged the Managing Director about whether minutes were kept of key decisions. When raising these issues, she made it clear that she was concerned about her own personal liability for any breaches.
Airplus dismissed Ms Parsons following complaints from colleagues about her rude and disrespectful manner and due to management concerns that she alleged non-compliance without fully informing herself of the facts and the law. She had only been employed for around five weeks.
She claimed that she had been dismissed on whistleblowing grounds. The employment tribunal disagreed. It ruled that Ms Parsons had not made any disclosures which qualified for protection as she had raised them solely to protect her own self-interest and did not therefore reasonably believe them to be made in the public interest. In addition, she had not been dismissed for making the disclosures but due to the rude and irrational manner in which she raised her concerns. Ms Parsons appealed to the Employment Appeal Tribunal (EAT).
Decision
The EAT dismissed her appeal, finding that the employment tribunal had applied the public interest test correctly. A disclosure does not have to be made entirely in the public interest in order to be protected and so may be protected where there is also an element of self-interest. However, it was crucial in this case that the employment tribunal had found that Ms Parsons had not made the disclosures in anything but her own interest. There was therefore no public interest element at all.
The EAT also upheld the tribunal’s decision that Ms Parsons had not been dismissed for making the disclosure. The tribunal was well aware of the danger that a whistleblower may be perceived as a difficult colleague and that it can be all too easy to think it is the manner of blowing the whistle that is the issue, when really it is simply the whistleblowing itself. However, the tribunal had made a clear finding that the employer was not concerned about the substance of the disclosures. Instead it was concerned about what she did after making them – her conduct and failure to give rational cogent reasons for her beliefs, her irrational fixation on her personal liability and her inability to listen to and take on board what her colleagues had to say. It was not what Ms Parsons was raising that was of concern, but the way in which she raised it and how she conducted herself thereafter.
Implications
Where an employee raises a concern purely in order to protect their own back, the disclosure will not satisfy the public interest test and so the employee will not benefit from the employment protections for whistleblowers.
The decision is also helpful in demonstrating that it is possible to distinguish between dismissing someone for making a protected disclosure (which will be unlawful on whistleblowing grounds and automatically unfair) and dismissing them for conduct connected related to the disclosure (which will be a potentially fair reason for dismissal). Employers considering dismissing for conduct connected with a disclosure will need make it clear throughout the disciplinary process that their concern is not about the disclosures themselves but about the related conduct.
Written by
Louise Donaldson
Doyle Clayton
