Court of Appeal: Did 37 separate communications amount to a protected disclosure?

Published 2 diciembre 2020

The Court of Appeal has held they did not, and an employment tribunal was right on the facts of this case not to aggregate the disclosures to look at the composite picture.

THE FACTS

The Claimant started work as a Managing Director on the organisation’s Emerging Markets Desk in February 2015.  He made allegations about a number of trading practices.  The Claimant’s behaviour was seen by management and colleagues as constant complaining and a failure to get on with generating business, and there were concerns over his attendance.  The Claimant was dismissed in December 2015.

The Claimant brought employment tribunal proceedings, claiming, among other things, that he had been automatically unfairly dismissed for having made protected disclosures.  His particulars of claim referred to four protected disclosures, although each of these referred to several previous communications, both written and oral.

At the hearing, the tribunal relied on a chronology compiled by the Respondent’s barrister of 37 separate alleged disclosures made between April and November 2015. The tribunal was extremely critical about the manner in which the Claimant sought to raise matters of alleged concern, noting that:

• some of his communications were ‘cryptic in the extreme’;
• his criticisms lacked specific details of dates, times, traders and clients; and
• he was evasive and failed to provide information to his former employer when it was requested.

The tribunal considered that the Claimant’s motivation for raising many of these matters was to do with being deprived of commission payments he thought were rightfully his.  It concluded that the alleged protected disclosures did not satisfy the statutory definition: none of them constituted information which in the actual and reasonable belief of the Claimant tended to show malpractice.  The tribunal accepted the Respondent’s evidence finding that the Claimant’s "distrustful and obstructive" behaviour had made it utterly impossible for the team to work with him.  They found his distrust of the other traders proved the most corrosive factor and is what he was dismissed for.  It was ‘utterly fanciful’ to suggest that the alleged disclosures were the real reason for the dismissal.

The Claimant appealed to the EAT, arguing, among other things, that the tribunal had erred in not aggregating the multiple alleged disclosures and considering them cumulatively.  The EAT dismissed the appeal, having considered a previous case where three separate communications taken together amounted to a protected disclosure.  In that case the three communications, two on the same day and one a week later, were all on the same subject and the second and third disclosed information which that claimant reasonably believed tended to show a risk to health and safety.  This case was far more complex. The tribunal were right not to consider a composite disclosure given the absence of:

• clarity from the Claimant about which particular communications should be grouped together, and the specific protected disclosure to which that combination gave rise; and
• any obvious link between the disparate communications.

The Claimant appealed to the Court of Appeal on almost identical terms as the appeal to the EAT. The Court of Appeal, in dismissing the appeal, observed that whether communications taken together can amount to a protected disclosure is a question of fact and no more than common sense.  On these facts, the question of whether any combination of the 37 communications should be read together was ‘rather arid’ since, on the tribunal’s findings, none of them amounted to a protected disclosure whether read in isolation or by reference to previous communications.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a helpful case for employers.  The Claimant clearly felt that in making a lot of allegations he would be protected.  The Court of Appeal have made it clear that such a tactic will not successfully meet the strict legal test for a protected disclosure.  However, where multiple allegations are being made it is nevertheless important for an employer to step back and assess them on their totality.  If, unlike in this case, malpractice is identified it should be dealt with.  The commentary about the Claimant’s motive being self-interested is also helpful for employers, although readers will be aware that having mixed motives for making a disclosure is not a barrier to protection.

Simpson v Cantor Fitzgerald Europe