Simpson v Cantor Fitzgerald Europe

Failure by an Employment Tribunal to set out a brief summary of the relevant law breaches Rule 62(5) of the Employment Tribunal Rules of Procedure 2013, but it is not automatically a ground of appeal. The appellate question is whether the omission was material and whether the reasons show the issues decided and why.

For whistleblowing, information is not separated rigidly from allegations or queries. The communication must have sufficient factual content and specificity. The worker must actually believe that it tends to show wrongdoing, and that belief must be reasonable; the public-interest belief need not be predominant. Communications may be read together where the facts justify it. Clear findings that no protected disclosure was made, and that dismissal was for genuine conduct and trust concerns rather than whistleblowing, will ordinarily defeat the appeal.

Dray Simpson, a managing director at Cantor Fitzgerald Europe, brought claims under Part IVA of the Employment Rights Act 1996 alleging detriments, automatically unfair dismissal and unlawful deductions from pay. His whistleblowing case concerned four categories of alleged disclosures comprising 37 communications about regulatory misconduct, front-running, misleading trading information and customer due diligence.

The Employment Tribunal dismissed all claims on 17 July 2017. The Employment Appeal Tribunal, presided over by Choudhury P, dismissed the appeal in UKEAT/0016/18/DA. The appeal to the Court of Appeal challenged the Tribunal’s reasons, its treatment of the communications collectively, the information and belief requirements, the public-interest test, and its findings about the reason for dismissal.

1. Appeal and costs. The appeal was dismissed with costs. Henderson LJ and Rose LJ agreed with the judgment of Bean LJ.
2. Reasons. Failure to set out even a brief summary of the relevant law breaches Rule 62(5) of the Employment Tribunal Rules of Procedure 2013. It is not, however, an automatic ground of appeal. The material question is whether the omission affected the decision and whether the reasons enable the parties to understand the issues decided and why. The approach in Meek v City of Birmingham District Council [1987] IRLR 250 was applied. The requirement is a guide to adequate reasons, not a prescribed form.
3. Aggregation. Following Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, separate communications may be read together where the facts justify that approach. Whether they form a protected disclosure is generally a question of fact. Here, the Employment Tribunal found that none of the 37 communications qualified, whether considered alone or together. The aggregation issue therefore caused no material error.
4. Information and belief. Kilraine v Wandsworth London Borough Council [2018] ICR 1850 establishes that section 43B(1) does not create a rigid dichotomy between information and allegations. A communication must have sufficient factual content and specificity capable of tending to show a statutory matter. The Tribunal may have treated one query too rigidly by reference to Cavendish Munro PRM Ltd v Geduld [2010] IRLR 38, but it also found that Mr Simpson did not genuinely believe that the information showed regulatory wrongdoing. That finding was open to it.
5. Expertise and public interest. The insider-knowledge point identified in Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 operates both ways: expertise may support a worker’s belief, but may also show that the worker should have recognised that the material did not indicate wrongdoing. The Tribunal was entitled to find that Mr Simpson’s failure to make a clear report to Compliance undermined any genuine belief. The principles in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837 concerning belief in the public interest were not decisive because the necessary genuine belief in wrongdoing was absent.
6. Reason for dismissal. The Tribunal clearly found that Mr Neilly made the dismissal decision and acted for genuine reasons relating principally to lack of trust, poor teamwork and attendance. Applying Royal Mail v Jhuti [2020] ICR 731, a hidden protected-disclosure reason cannot be insulated by an invented reason adopted by the decision-maker. There was no such manipulation here. Even assuming that some protected disclosure had been made, the reason for dismissal was separable from it.

• Court of Appeal (Civil Division) — dismissed the appeal and ordered the appellant to pay the costs.
• Employment Appeal Tribunal — Choudhury P dismissed the appeal from the Employment Tribunal in UKEAT/0016/18/DA.
• Employment Tribunal — dismissed the claims for detriment, unfair dismissal and unlawful deductions from pay on 17 July 2017.