Can Communications Made on Separate Occasions Afford Whistleblowing Protection?
The Court of Appeal held that an employment tribunal was entitled to reject a whistleblowing claim which was based on 37 separate alleged communications. But can such communications amount to a protected disclosure?
The Whistleblowing Framework
Workers will be afforded protection from detriment and dismissal under the Whistleblowing Framework where they have made a "protected disclosure". This involves making what is known as a "qualifying disclosure" of information that, in the reasonable belief of the worker tends to show that any of the following has occurred, is occurring, or is likely to occur:
- a criminal offence
- breach of any legal obligation
- miscarriage of justice
- danger to health and safety of any individual
- damage to the environment
- concealment of any of the above.
For disclosures made on or after 25 June 2013, the worker must also reasonably believe that the disclosure is in the public interest.
A qualifying disclosure will become a protected disclosure where it has been made to one of the categories of people listed in the legislation (the first of these being the worker's employer).
Employees shall be regarded as having been automatically unfairly dismissed if the reason or principal reason for the dismissal is that they have made a protected disclosure.
Simpson v Cantor Fitzgerald Europe
Simpson made a number of allegations during his employment, including that his colleague had been undertaking an illegal trading practice known as "front running". However, Simpson was criticised by his employer for constantly complaining, failing to generate business and concerns over his timekeeping. He was suspended and eventually dismissed due to these concerns.
Simpson brought a claim in the Employment Tribunal that he had suffered detriments and had been automatically unfairly dismissed for making protected disclosures under the ERA 1996. The tribunal found that none of the 37 alleged disclosures amounted to protected disclosures and that it was "utterly fanciful" to suggest that the reason or principal reason for his dismissal was due to the disclosures he had made.
Simpson appealed to the Employment Appeal Tribunal and Court of Appeal. One of the grounds of appeal was that the tribunal had failed to read the 37 communications together when determining whether he had made a protected disclosure. The Court of Appeal acknowledged that previous case law had established that two or more communications can, taken together, amount to a protected disclosure. This will be a question of fact. In this particular case, the Court found that none of the 37 communications amounted to a protected disclosure whether read in isolation, or grouped together and therefore the question of whether or not they should be read together was irrelevant.
Best Practice
Whether or not more than one communication from an employee can amount to a protected disclosure will depend on the particular facts of the case. However, employers should be mindful of this risk when following a process in relation to a worker or employee and ensure that decisions are taken based on objective reasoning and not by reason of any disclosures made.