Whistleblowing protection narrowed by latest decision

A recent decision confirms that whistleblowing protection does not apply if a disclosure is made purely out of self-interest.

Protection for whistleblowers

Workers who disclose wrongdoing by their employer (or a third party) enjoy enhanced legal protection from detriment or dismissal.

An employee who is dismissed because they made a “qualifying disclosure” will be automatically unfairly dismissed and can recover unlimited compensation in the employment tribunal; they do not need to have been employed for two years or more before bringing a claim.

For these reasons, employers need to be cautious about dealing with staff where allegations have been made which could amount to a qualifying disclosure. For individuals, whistleblowing protection may enable them to bring a claim in circumstances they would not otherwise be able to – for example, because they have not been employed for long enough.

Is the disclosure in the public interest?

Not all disclosures are protected however. To enjoy enhanced legal protection, the person making the disclosure must believe it to be in the public interest. In a recent case, the Court of Appeal interpreted this broadly and held that public interest did not have to be the sole motivating factor for an individual.

Latest decision

In the case of Parsons v Airplus International Ltd the Employment Appeal Tribunal (EAT) considered the case of a legal compliance officer who raised concerns with her employer about compliance matters purely to protect herself from possible legal liability. The EAT agreed with the employment tribunal that this did not amount to a qualifying disclosure and she had not been automatically unfair dismissed.

Comment

While this decision appears to limit the extent of protection for whistleblowers, this will still be available where there is a “hybrid” reason for the disclosure which involves some element of public interest – in this case there was none, it was purely personal.

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