The Facts
In this case the EAT held that an employee who raised compliance issues purely out of concern for her own liability did not make a qualifying disclosure, so was not protected as a whistleblower.
Ms Parsons, a qualified non-practising barrister, was employed by Airplus International Ltd as its Legal and Compliance Officer, subject to a six month probationary period. Airplus had found it hard to recruit into the role, and had accepted her application although she had no compliance qualifications or experience.
On 7 September, Ms Parsons raised concerns about Airplus’s consumer credit license, advising that a license should be sought as soon as possible, and asking for confirmation that they would get one and that she would not be personally liable for any non-compliance. It was, however, unclear why Airplus would need a consumer credit license, as it did not provide any consumer products. Ms Parsons’ manager emailed her, advising her not to send warnings on non-compliance without knowing the facts.
A meeting was arranged between Ms Parsons and her manager, at which this incident was discussed. Ms Parsons was very upset, crying and saying that she did not want to go to prison. Her manager assured her that there was no question of her being held personally liable or going to prison, but that he was concerned about her response. To address her concern about any potential personal liability, Ms Parsons' job title was changed.
The day after this, Ms Parsons discussed certain compliance issues with another manager, a number of which did not apply to the products Airplus offered. She again raised the issue of a consumer credit license. She continued to raise this when they went into a meeting with Ms Haywood, the managing director, referring to unlawful behaviour, saying that Airplus was being “dodgy”. She also raised a concern that Airplus did not have a Money Laundering Reporting Officer (“MLRO”). She suggested that they contact the FCA about potential breaches. Ms Parsons was told that they should be better informed of the facts before contacting the FCA. Ms Parsons was very agitated and on several occasions said that the manager and managing director could go to prison. The manager and managing director agreed to speak to the company’s lawyers. However, the managing director was concerned about Ms Parsons’ conduct, which she felt was rude, confrontational and unhelpful. Her concerns were echoed later that day in a complaint by another member of the management team.
More complaints were received over the next few days. In one incident, she challenged the managing director in an aggressive way, asking “do you know how to run a company?”, and querying whether key decisions were minuted.
Following this exchange, the managing director met with Ms Parson’s line manager who concluded that, following the meeting where concerns were raised and her job title had been changed, there had been insufficient improvement in her performance and conduct. Her line manager considered that she “left behind burnt soil pretty much everywhere after only six weeks in the job.” She was told that her employment was to be terminated, her manager explaining that there was a cultural misfit, in particular arising from her approach to her work and those she worked with.
Ms Parsons claimed that she had been dismissed for being a whistleblower. The tribunal rejected her claim, finding that the matters she raised were not qualifying disclosures. Among other things, they were raised solely in her own self-interest.
The tribunal found that Ms Parsons had been dismissed for being a cultural misfit. This related to her rude and irrational manner when raising concerns. Although discussions about terminating her employment had begun only two days after she had raised the issue about a consumer credit license, the tribunal did not consider there to be a causal connection. Her conduct was genuinely separable from the disclosure. The tribunal also found that it was significant that Airplus did not immediately decide to dismiss following the disclosure, but waited to see if the change in her job title might lead to an improvement.
Ms Parsons appealed to the EAT. The EAT dismissed the appeal holding that:
- The concern about minute taking was not a protected disclosure because she did not disclose any information. She had made an enquiry as to whether minutes were kept, and made clear that the reason she was asking was to ensure that she was protected on a personal basis. Even if that was not a correct finding, the tribunal was still entitled to find that the reason why she raised this concern was wholly in her self interest.
- The tribunal had correctly followed Chesterton, and directed itself that a disclosure does not have to be made entirely in the public interest in order to be protected. A self-interested disclosure may still qualify. However, crucially, the tribunal made no finding that her disclosure was in anything but her own interest. The tribunal was therefore entitled to conclude that the disclosure was not protected.
- 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 simply the whistleblowing itself. The EAT was satisfied that the tribunal had made a clear finding that Airplus was not concerned about the substance of her disclosures, but about what she did after making them - her unresearched assumptions and demands, 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.
What does this mean for employers?
Employers should not be leaping with joy; this case turns on its facts and does not open the door to dismissing employees who raise concerns out of self-interest. It will be unusual for an employer to be able to provide such strong evidence that disclosures have been made purely in self-interest. Case law shows that a disclosure which is made in the worker’s own interest may also be made in the public interest, and employees can therefore be protected even if they are motivated partly by self-interest.
Employers who dismiss employees, or subject them to any detriment, soon after they have raised a concern about possible wrongdoing should be careful to ensure that they have good evidence showing that their action has no causal link with the concern. This is because it is common for employees to assert that there is a causal link, and claim protection as a whistleblower.
