Are Disclosures Made Entirely Out of Self-Interest Protected Under Whistleblowing Provisions?
..."No" said the Employment Appeal Tribunal (EAT) in Parson v Airplus International Ltd.
It was held that no protected disclosure was made, as the disclosure was made by the Claimant purely out of concern for her own liability and not made in the public interest.
The Facts
The Claimant, Ms Parson's, was employed by Airplus as a Legal and Compliance Officer from August to September 2015. After joining, 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). Ms Parson did not accept Airplus' explanation that it was not clear if they were required to have a consumer credit licence and that they were aware of the lack of a MLRO, but did not believe that one was required. In raising her concerns, Ms Parson was clear that her "disclosures" were motivated by fear of her own personal liability for Airplus' perceived breaches. As a result of her concerns, Airplus changed her role title to Analyst for Regulatory Affairs and Contract Management.
During her 6 weeks of employment, Airplus had received a number of complaints about Ms Parson's rude and disrespectful manner. This culminated in an incident between Ms Parson and the Managing Director which resulted in the termination of her employment due to a 'cultural misfit'.
The Decision
The Employment Tribunal (ET) and the EAT both rejected the claimant's claim of automatically unfair dismissal due to a protected disclosure. Both were satisfied that as the disclosure was made wholly in the claimant's own self-interest, and not in the public interest, therefore it was not a protected disclosure.
The EAT held that a disclosure will not be barred from protection if made out of self-interest, however it must be made at least partially in the public interest. In addition, the EAT made clear that the decision of Airbus to dismiss was not made due to the protected disclosure, but instead made on the basis of her conduct.
Finally, in their judgment the EAT found that, although Airplus was already aware of the MLRO issue, knowledge of an issue does not mean that a protected disclosure cannot be made in reference to it.
Best Practice
Self-interested disclosures do not necessarily prevent an employee from claiming protection for having made a qualifying disclosure for whistleblowing purposes. However it must not be the sole reason for making the disclosure. The employee has to have held reasonable belief that making the disclosure was also in the public interest. As establishing what an individual believed at the point of making the disclosure can be difficult, employers should be cautious in terms of relying on self-interest.
Employers must take care with their approach when employees raise matters that may be considered protected disclosures. It is important that employers have clear policies in place within their staff handbook to deal with such situations as they arise and ensure that their staff are trained to manage such circumstances effectively including recording any information given by the employee at the time of their disclosure in relation to their motivation for making it. In cases where the employee's conduct or performance is also an issue, it is also essential that this is properly documented to establish a case for dismissal that is unconnected to the disclosure.