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Whistleblowing did not give employee carte blanche to behave disruptively
Adrian Fryer
It is important that employers have a clear understanding of their obligations towards whistleblowers in the workplace. It is equally important to understand that their status as whistleblowers does not make them untouchable. The law is clear: Employers will be liable for automatic unfair dismissal if they dismiss an employee because they have made protected disclosures. They could also face claims if they subject a whistleblower to a detriment on the ground that they have made a protected disclosure.
What is a whistleblower?
In employment, a whistleblower is someone who makes a disclosure of information which they reasonably believe shows one of the following types of wrongdoing: criminal offences; breach of any legal obligation; miscarriages of justice; danger to the health and safety of any individual; damage to the environment; or the deliberate concealing of information about any of these things. To be protected, the disclosure must usually be to the employer (although it can, in some circumstances, be made to a third party).
How far does whistleblower protection stretch?
It is very important that employers do not treat whistleblowers detrimentally or dismiss them because they have made a protected disclosure. However, if the employer has a genuine conduct issue with the whistleblower, then the fact that they have blown the whistle does not mean that the employer cannot, or should not, take action. This can be the case even where the conduct issue is indirectly linked to the whistleblowing. This was illustrated in the recent case of Argence-Lafon v Ark Syndicate Management. The employee made protected disclosures regarding a loss claim he believed to be fraudulent. His initial disclosures were held to be protected. They were investigated thoroughly by Ark who concluded that the loss was not fraudulent. The employee’s view was intransigent, and he continued to state that the loss was fraudulent. His later statements were not held to be protected disclosures: it was not reasonable for him to continue to hold his view in light of the thorough investigation.
The employee was later placed under performance management. He alleged that the PIP was punishment for having made protected disclosures. He was dismissed for breakdown of trust and confidence because:
- he would not engage with the PIP; and
- there was a breakdown in trust and confidence rooted in his continual claims that Ark had been complicit in fraudulent activity.
The Employment Appeal Tribunal held that the dismissal was not automatically unfair: the principal reason for the dismissal was not the disclosures themselves but the employee’s continual claims of fraud once an investigation had found no fraud; and failure to engage with the PIP because of his (misplaced) conviction that it was imposed because of his disclosures.