Parsons v Airplus International Ltd

An employment tribunal must determine whether a worker made a qualifying disclosure by reference to the information actually disclosed and the worker’s reasonable belief that it was in the public interest. A disclosure may serve the worker’s personal interests and still meet that requirement. However, findings that an employee merely made an enquiry to protect herself, without disclosing information tending to show a legal breach, may preclude that conclusion.

For dismissal under Employment Rights Act 1996, section 103A, the tribunal must identify the real or principal reason for dismissal. Conduct following a protected disclosure may be treated as separable from the disclosure only where it genuinely constituted the employer’s reason for acting. The tribunal must scrutinise that distinction carefully.

The Claimant, employed during probation as the Respondent’s Legal and Compliance Officer, raised concerns about regulatory compliance, including the expiry of a consumer credit licence and the absence of a money-laundering reporting officer. Her employment was terminated after complaints about her conduct, her dealings with colleagues, and her ability to work effectively with them.

The Employment Tribunal dismissed her claim of automatic unfair dismissal under section 103A of the Employment Rights Act 1996. It accepted that one disclosure was protected, rejected the other alleged disclosures, and found that the principal reason for dismissal was conduct and working relationships rather than whistleblowing. The Claimant appealed, challenging both the qualifying-disclosure findings and the finding on the reason for dismissal.

1. Appeal dismissed. The Employment Tribunal erred in holding that the alleged disclosure concerning the absence of a registered money-laundering reporting officer could not qualify because the Respondent already knew that fact. Prior knowledge by the employer is not a statutory requirement under section 43B of the Employment Rights Act 1996.

2. The error did not affect the outcome. The Tribunal’s findings established that the dismissal was not because the Claimant raised that matter. Even allowing for that disclosure, and for the possibility that further alleged disclosures might qualify, the Tribunal could properly find that the Respondent delayed any dismissal decision to see whether matters improved and dismissed for a separate reason.

3. The Tribunal had considered the alleged communications about minutes together. On its findings, the Claimant made an enquiry about whether minutes were kept and explained that she wished to protect herself if her advice was not followed. It permissibly found that she had not disclosed information tending to show a likely legal breach, and that her concern was solely personal. It had not adopted the legally erroneous view that self-interest necessarily excludes public interest.

4. The Tribunal was entitled to find the protected disclosure concerning the consumer credit licence was not the real reason for dismissal. It had addressed the timing relied on by the Claimant, but found that the Respondent’s concerns concerned her subsequent unresearched demands, inability to give cogent reasons, fixation on personal liability, rudeness, and inability to work with colleagues.

5. Those matters were genuinely separable from the fact of making a protected disclosure. The Tribunal had applied the required caution but was entitled, on its primary findings, to distinguish between the information disclosed and the Claimant’s later conduct. The principal reason for dismissal was the Respondent’s grave doubt about her ability to perform effectively in the role.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s dismissal of the automatic unfair dismissal claim was upheld despite an error concerning one alleged qualifying disclosure.
• Employment Tribunal (London Central): Dismissed the Claimant’s claim of automatic unfair dismissal by reason of protected disclosures.