In Dray Simpson v Cantor Fitzgerald Europe, the Employment Appeal Tribunal ("EAT") has provided a useful summary of recent developments in whistleblower protections, which will be particularly relevant to those operating in the financial services sector. This case demonstrates that, whilst the FCA is keen to punish firms that mistreat whistleblowers, employers should not be reluctant to dispute unmeritorious claims.
Mr Simpson claimed that his dismissal was in retaliation for him making a series of whistleblowing disclosures and was unfair. At the time he issued his claim, Mr Simpson identified four alleged protected disclosures. However, by the time his case reached the final hearing at the Employment Tribunal ("ET"), the number of disclosures had increased to 37! The ET was unimpressed and concluded that none of disclosures Mr Simpson sought to rely on were protected and it was "utterly fanciful" to suggest that the reason for his dismissal was that he had made whistleblowing disclosures.
The EAT judgment summarises most key technical issues that can arise from a whistleblowing claim. We have set out further below a whistle stop tour (… sorry) of the technical issues covered in the judgment.
When it’s right to fight
Falling foul of whistleblowing protections doesn't just risk an employee bringing a claim, it's also something that regulators are coming under increasing pressure to tackle. Following criticism of its reputation on whistleblower protections during a recent parliamentary debate, the FCA has confirmed that it is increasing its resources in this area.
It is only a matter of time until we start to see the FCA making an example of firms who impermissibly subject whistleblowers to unfair treatment and possibly issuing headline-grabbing fines. All the unusual good practice advice should be followed: have effective whistleblowing policies and train staff on dealing with whistleblowers fairly. But employers should also be prepared, as Cantor Fitzgerald Europe did, to dispute unfounded whistleblowing claims.
The EAT decision: highlights
Mr Simpson appealed to the EAT on a number of grounds. The key parts of the EAT's judgment for HR practitioners and in-house counsel are as follows:
1. Considering the whole picture: The collective effect of a series of communications can be taken into account when identifying whether there has been a protected disclosure, but there must be a clear and obvious link between the series. Despite this, communications that do not amount to a protected disclosure on their own, are unlikely to amount to one when combined with others.
2. Substance over form: information v allegation: There has been much debate about whether an "allegation" is capable of qualifying as a "disclosure of information". The EAT confirmed that the form of the communication, whether pitched as a query, complaint or notification, is not of great importance. What mattered more was whether there was sufficient factual content and specificity.
3. Reasonable belief and insider status: A worker's status as an "insider" in their industry is a relevant factor when considering "reasonable belief". This also means that the worker is expected to apply their knowledge and expertise in considering all the material available to them before making the disclosure and the views of other "insiders" should also be taken into account, so this will not necessarily assist the worker.
4. Public Interest: The particular reason why a worker believes their disclosure is in the public interest is not critically important, but if it is not a credible reason there may be doubt as to whether the belief that the disclosure was in the public interest was genuine.
5. Dismissal decision influence: One of the key developments in whistleblowing has been the concept that a dismissal decision-maker could be manipulated by other employees who were influenced or motivated by the worker having made protected disclosures and therefore the decision maker's decision to dismiss could be tainted. While the current state of play on this is that the resulting dismissal would likely be fair in those circumstances, the Supreme Court has recently considered this concept and we await their decision on this. The EAT found it was not relevant in Mr Simpson's case.
Co-authored by Hannah Bignell