What constitutes whistleblowing and protected disclosure?
Whistleblowing is where an employee makes a disclosure concerning wrongdoing at their workplace. The disclosure of that wrongdoing must (in the reasonable belief of the employee) have occurred, is occurring, or is likely to occur, and is:
- a criminal offence;
- breach of any legal obligation;
- miscarriage of justice;
- danger to the health and safety of any individual;
- damage to the environment or
- the deliberate concealing of information about any of the above.
An employee who is dismissed for making a disclosure of any of the above and therefore “blows the whistle” can claim unfair dismissal due to such disclosures being protected. It does not matter whether such employee had two years’ continuous service (which is a prerequisite for an unfair dismissal claim ordinarily) and there is no cap placed on the compensation award that may be granted by a Tribunal.
It is therefore important that employers provide adequate protection for whistle-blowers in the sense that it will promote good internal risk control for that organisation, and will indeed, avoid unnecessary litigation. Not only does this limit reputational damage for an employer but it also mitigates against the risk of such wrongful dismissal claims arising as these claims can be costly for employers.
A recent case on the topic
Simpson v Cantor Fitzgerald [2020], explored what constitutes a protected disclosure. Mr Simpson, the employee, had been employed by Cantor Fitzgerald (an investment bank) as an investment trader for less than a year before his dismissal. Mr Simpson claimed that he was dismissed due to making protected disclosures during the course of his employment. These largely centred around the behaviour of his fellow traders.
The Tribunal found that, out of all the allegations made by Mr Simpson, none of these were, in fact, protected disclosures. The Tribunal held that where a disclosure is made of any alleged wrongdoing, it will only be a protected disclosure if the employee genuinely believes there has been some degree of legal wrongdoing by the employer, which is also within the public’s interests. They further held that mere complaints about the way in which trades are carried out will not be protected disclosures. It was clear that Mr Simpson’s allegations were based on his disappointment at not achieving commission. It was noted during the case that the real reason Mr Simpson had been dismissed was that his ‘distrustful and obstructive’ behaviour had made it ‘utterly impossible for the team to work with him’.
Mr Simpson appealed the Tribunal’s decision. The Court of Appeal upheld the Tribunal’s findings and found that the allegations made by Mr Simpson were not protected disclosures as:
- they were insufficiently specific; and
- Mr Simpson did not genuinely believe that such allegations showed any wrongdoing on the part of the employer (or its employees).
Notwithstanding the above, the Tribunal had found that Mr Simpson was dismissed not for the alleged “protected disclosures”, but due to his behaviour and attitude towards his fellow employees (as well his own poor time management).
Whilst this case highlights the importance of ensuring that, where it’s claimed protected disclosures are met, these are not just spurious allegations about the way in which a trade operates – it is clear that from an employer’s perspective there is a need to put in place effective whistleblowing policies that clearly set out what constitutes unacceptable conduct.
If you require advice on this, or any other employment law issue, please contact Marie Allen on 01473 298133 /[email protected] or Elizabeth Clazie on 01473 298187 / [email protected].
