WHISTLEBLOWING AND SELF-INTEREST CONCERNS
In Parsons v Airplus International Ltd, the EAT has provided useful guidance on the scope of whistleblowing legislation, in particular where a disclosure is made purely out of concern of the employee’s own potential liability.
Ms Parsons was employed as a Legal Compliance Officer by Airplus International Limited (Airplus) for just over five weeks. She was subject to a six-month probationary period. Early on in her employment she seemed anxious about her duties and expressed fears about facing personal liability if Airplus was in breach of its legal obligations.
Ms Parsons raised a number of issues about Airplus and whether it was complying with its legal obligations. She was unable to explain the legal basis for her views and at one meeting she cried, expressing concern that she did not want to go to prison for any company law breaches.
Airplus tried to allay her fears by changing her job title to Analyst for Regulatory Affairs and Contract Management. However, her line manager was concerned that she did not appear to be considered or commercial in her approach.
Airplus also received various complaints from Ms Parsons’ colleagues about her being ‘rude’ and ‘disrespectful’.
Despite changing her job title to remove the focus of responsibility for compliance and offering Ms Parsons’ 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 a claim asserting that she had been automatically unfairly dismissed for having made protected disclosures.
The tribunal rejected the claim. It found that the disclosures were not qualifying disclosures as, amongst other things, they were made solely in her self-interest. As to the reason for the dismissal, the tribunal found that Ms Parsons had been dismissed for her conduct in acting in a rude and irrational manner when raising concerns.
Ms Parsons appealed.
The EAT upheld the tribunal’s decision. The EAT noted that 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 that it is the manner of blowing the whistle that is the issue, when really it is the whistleblowing itself. The EAT was satisfied that the tribunal had made a clear finding that Airplus was not concerned about the substance of Ms Parson’s disclosures, but the manner in which she raised them, namely her conduct and failure to give rational, cogent reasons for her beliefs, her irrational fixation on her personal liability, and her inability to listen or take on board what her colleagues had to say.
Following case law, it is clear that there may be “hybrid” cases where a disclosure is made in self-interest and the public interest, which can constitute a qualifying disclosure. However, this case clarifies that a disclosure which is made purely in the interest of the discloser will not amount to a protected disclosure.
As was observed in this case, for someone in a compliance role, almost everything they raise would be related to matters which may amount to a protected disclosure. If the EAT had found in Ms Parsons’ favour it would be near impossible to manage or dismiss any employee in a compliance role. If deciding to dismiss a person who has made allegations of a whistleblowing nature, it will be particularly important for employers to be able to show that the reason for the dismissal is truly separate.