Can an employee raising concerns at work purely out of self-interest be protected by whistleblowing legislation?
The EAT has confirmed in the case of Parsons v Airplus International Limited that an employee who complained about compliance issues solely out of concern… Read more
The EAT has confirmed in the case of Parsons v Airplus International Limited that an employee who complained about compliance issues solely out of concern for her own interest did not make a qualifying disclosure, and so was not protected for the purposes of the relevant whistleblowing legislation. This contrasts with a Court of Appeal decision last year that a disclosure made for reasons of self-interest could potentially also be in the public interest.
Ms Parsons started work as a Legal & Compliance Officer for Airplus on 17 August 2015, despite not possessing any compliance qualifications or experience. From the start, she appeared nervous about her duties and presented concerns about the fact that she could be personally liable if Airplus did not comply with its regulatory obligations. Among other points, she expressed her worries that her employer did not possess a consumer credit licence, nor had it appointed a Money Laundering Reporting Officer, although it was not necessarily clear that either of these points was required from a compliance perspective.
Complaints were made about Ms Parsons during the period 9-21 September 2015 relating not to the fact that she had raised these concerns, but to the way in which she had raised them. She was described as rude and disrespectful. After only six weeks, her employment was terminated, after she had alienated a number of individuals with whom she came into contact in the organisation.
Ms Parsons subsequently claimed she had been automatically unfairly dismissed for making whistleblowing disclosures. The employment tribunal acknowledged, and the EAT later agreed, that while a whistleblower could potentially make “hybrid” disclosures out of a mixture of self-interest and genuine public interest, Ms Parsons was motivated solely by her self-interest, and had not reasonably believed her concerns to be in the public interest. The EAT also approved the tribunal’s findings that Ms Parsons was dismissed for actions before and after the alleged disclosures, rather than the disclosures themselves. Described by a witness as leaving “burnt soil” behind her, the EAT agreed that Ms Parsons’ irrational behaviour, fixation on her personal liability and a failure to work with her colleagues were the actual reasons for dismissal.
Comment: Any employer facing a similarly challenging set of circumstances, especially in relation to an employee working in a compliance function, should tread carefully in order to demonstrate that the actual reason for any subsequent dismissal is unrelated to the fact that the employee may have raised concerns which they subsequently seek to present as whistleblowing disclosures.
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