Whistleblowing In Own Interest Not a Protected Disclosure

The Employment Appeal Tribunal (EAT) judgment in Parsons v Airplus International Ltd was published last week, confirming that a disclosure made purely in the self-interest of the disclosing party cannot qualify as a protected disclosure in whistleblowing cases.

Ms Parsons, a Legal and Compliance Officer for Airplus, had made a number of disclosures to her employer regarding various compliance issues.  In making these disclosures she made it clear that she was concerned about her own personal liability in the event of any breaches.  Ms Parsons was subsequently dismissed following complaints from colleagues about her attitude, and brought a claim for automatic unfair dismissal on the basis of her having made protected disclosures.

The Employment Tribunal rejected Ms Parsons’ contention that her disclosures were the reason for her dismissal and Ms Parsons appealed to the EAT.  In dismissing the appeal, the EAT held that while a self-interested disclosure may still be in the public interest and thus qualify as ‘protected’ (following Chesterton Global Ltd v Nurmohamed, which we reported on here in July), in the present case Ms Parsons had no belief that her disclosures were in the public interest and consequently her claim for automatic unfair dismissal failed.

Comment:          While it is perhaps unsurprising that a disclosure made solely out of self-interest cannot qualify as a protected disclosure, the EAT judgment also reiterates that there is a distinction between dismissing an employee for making a disclosure and dismissing an employee for conduct related to the disclosure.  For example, Ms Parsons was dismissed largely because of the manner in which she made her disclosures (failing to inform herself of the facts, making unreasonable demands, refusing to listen etc.), rather than because of the disclosures themselves.

Given that there may be a number of reasons for an employee making a disclosure, employers should err on the side of caution and treat such matters as whistleblowing in the first instance.  Where self-interest is identified as the sole reason for the disclosure, employers should ensure they are able to evidence this.