In this case, the EAT held that an employment tribunal had applied the wrong test when assessing whether an employee's disclosures were protected under whistleblowing legislation. However, it upheld the tribunal's decision that the employee had been dismissed for poor performance, not for whistleblowing.
Background
Under the whistleblowing provisions in the Employment Rights Act 1996, if an employee is dismissed for the sole or principal reason that they made a protected disclosure, their dismissal will be automatically unfair. An employer will also be liable if they subject an employee to a detriment, and the employee's protected disclosure materially influenced the employer's actions.
To qualify for whistleblower protection, a worker who makes a disclosure must reasonably believe that they are acting in the public interest and that the disclosure tends to show a criminal offence, failure to comply with a legal obligation, miscarriage of justice, danger to health and safety, damage to the environment, or covering up wrongdoing in relation to one of those things.
Facts
Ms Bibescu was employed as an accountant from November 2018 until her dismissal in June 2020. Ms Jenner, the firm's principal, first raised concerns with Ms Bibescu about her performance in August 2019. Those concerns continued into 2020, and Ms Jenner asked a sub-contractor, Mr Grimes, to peer-review Ms Bibescu's work due to the number of mistakes it contained.
Ms Jenner raised further concerns about the quality of Ms Bibescu's work and her attitude by email in April and May 2020. On 26 May 2020, she gave Ms Bibescu a verbal warning that her work was not meeting the required standard.
Ms Bibescu was unhappy about her work being reviewed by Mr Grimes and requested a meeting with Ms Jenner to discuss this. Before the meeting, Ms Bibescu researched Mr Grimes on Companies House and found that he had previously been disqualified as a director, and that he was not a member of the Association of Chartered Certified Accountants (ACCA). She raised both points at the meeting on 8 June 2020.
Following the meeting, Ms Bibescu continued to make mistakes and there was further friction between her, Mr Grimes and another employee. On 11 June 2020, Ms Jenner dismissed Ms Bibescu, stating in the dismissal letter that the decision was taken based on Ms Bibescu's poor performance and her inability to work with Mr Grimes.
Ms Bibescu did not have sufficient service to bring an ordinary unfair dismissal claim. However, she claimed that she had been automatically unfairly dismissed and subjected to detriments (disciplinary action and a hostile work environment) on the basis that she had made protected disclosures about Mr Grimes' disqualification as a director and non-membership of ACCA.
An employment tribunal dismissed Ms Bibescu's automatic unfair dismissal claim, holding that the reason for dismissal was not her disclosures but her poor performance, which had been raised with her repeatedly by Ms Jenner before she made her disclosures. The tribunal also held that Ms Bibescu's disclosures were not protected, because she had made them in her own interest rather than the public interest and they did not tend to show one of the relevant types of wrongdoing. Ms Bibescu appealed.
The EAT agreed with the tribunal that Ms Bibescu had not been automatically unfairly dismissed. The tribunal had been entitled to find on the facts before it that the principal reason for Ms Bibescu's dismissal was her poor performance.
However, the EAT held that the tribunal had erred in its assessment of whether Ms Bibescu's disclosures were protected. The tribunal should have considered whether Ms Bibescu genuinely believed that her disclosures were in the public interest and whether that belief was reasonable. Instead, the tribunal had wrongly focused on Ms Bibescu's motive of discrediting Mr Grimes. The tribunal also failed to consider whether Ms Bibescu believed that her disclosures tended to show a relevant type of wrongdoing, instead substituting its own view that they did not. In addition, the tribunal did not reach any express conclusion on Ms Bibescu's whistleblowing detriment complaint.
The EAT therefore remitted the case to a different tribunal to determine whether Ms Bibescu's disclosures were protected and whether she was subjected to a detriment as a result of making them.
What does this mean for employers?
This case is a reminder that even if a worker's motive for making a disclosure is self-interested, the worker may still qualify for whistleblower protection if they also had a reasonable belief that the disclosure was in the public interest. Employers would therefore be well advised to consider carefully whether the employee may have whistleblowing protection, even if they are sceptical of a worker's motives for making the disclosures.
It also demonstrates the importance of documenting and communicating performance concerns as they arise. The employer in this case successfully defended the employee's claim for automatically unfair dismissal because it satisfied the tribunal that the principal reason for dismissal was the employee's poor performance, which it had raised with her before she made her disclosures.
