For a whistle-blowing claim to succeed, the worker has to show that they had a “reasonable belief” that the disclosure was in “the public interest”. In Dray Simpson v Cantor Fitzgerald Europe, the Employment Appeal Tribunal (EAT) held that the claimant’s complaints about commission payments could not be said to engage the public interest but rather were motivated by his own self-interest.
Mr Dray Simpson was appointed to work on the firm’s Emerging Markets Desk, but after sharing his concerns about some of the company’s trading practices with his line manager, he was dismissed after only 10 months in the job.
He brought claims of unfair dismissal on the basis that he had made a series of separate protected disclosures (blown the whistle) about trading practices within the company.
Dismissing his claims, the tribunal was scathing about the way in which Mr Dray Simpson had raised his alleged concerns which, it said, were “over general, lacking specific details of dates, times, traders, and clients”.
The tribunal concluded that not only was it “utterly fanciful” to argue that the reason or principal reason for his dismissal was that he had made disclosures but that the company was “probably correct in its contention that the Claimant was merely trying to pass his commission concerns off as protected disclosures in order to leverage his personal position”.
Mr Dray Simpson appealed on the grounds that the tribunal ought to have aggregated the disclosures rather than consider each one separately; had wrongly adopted a strict dichotomy between allegations on the one hand and information on the other; had misapplied the tests for reasonable belief and the public interest element in section 43B of the Employment Rights Act (ERA) 1996; and had failed to set out the legal principles on which it had based its decision.
Section 43B ERA states that for a disclosure to qualify for protection, it must “in the reasonable belief of the worker making the disclosure”, be made in the public interest and tend to show that someone has failed to comply with a legal obligation, among other things.
The EAT dismissed his appeal, holding firstly that the decision about whether to aggregate two or more disclosures was a question of fact for the tribunal. For instance, it would be appropriate to aggregate them in circumstances where one communication was embedded within another. It was not therefore perverse for the tribunal to consider them separately in this case as it was unclear which disclosures should have been aggregated with which.
Secondly, the tribunal had not applied the (now discredited) strict dichotomy between allegations and information. Instead, it had correctly analysed the relevant communication in each instance to determine if it contained enough factual content to amount to a disclosure of information within the meaning of section 43B.
Thirdly the tribunal was correct in the way it approached the element of “reasonable belief” set out in section 43B in that it considered whether the disclosures were sufficiently factual and specific to give rise to a reasonable belief that the information tended to show the relevant breach. Instead it found that they were “speculative” or based on “assumptions”. As for the “public interest” aspect, the tribunal found that there was nothing to suggest that his complaints about commission payments could be said to engage the public interest as opposed to his own self-interest.
Finally, although it was unfortunate that the tribunal had not set out a summary of the relevant legal principles, the EAT held that it had substantially complied with the requirement in the tribunal rules to set out how it had applied the relevant law which was all that was needed.
This case considers much of the whistle-blowing legislation and dismissal appeal points and is a useful read for anyone pursuing a whistle-blowing claim, setting down what appear to be now well-established principles.