Simpson v Cantor Fitzgerald Europe

The Court of Appeal dismissed the appellant's challenge to findings of the Employment Tribunal and the Employment Appeal Tribunal about alleged protected disclosures under Part IVA of the Employment Rights Act 1996. The court applied the statutory test in s.43B (qualifying disclosure: information which, in the reasonable belief of the worker, is made in the public interest and tends to show one or more specified matters) and s.103A (dismissal for having made a protected disclosure). The tribunal’s extensive factual findings were upheld: none of the communications relied on were protected disclosures because they lacked sufficient specific factual content, the appellant frequently equivocated and did not show a genuine reasonable belief in wrongdoing, and many complaints were motivated by personal commission disputes rather than public interest concerns. The appellate court also rejected challenges based on alleged procedural failures under Rule 62 of the Employment Tribunal Rules of Procedure 2013, finding no material legal error that vitiated the tribunal’s conclusions.

Background and parties

Dray Simpson was employed by Cantor Fitzgerald Europe as Managing Director on an Emerging Markets Desk from 23 February 2015 until dismissal on 1 December 2015 (garden leave to 31 December 2015). He brought claims for whistleblowing detriment under s.47B and unfair dismissal under s.103A of the Employment Rights Act 1996, and a contractual claim for unlawful deductions from pay. The Employment Tribunal dismissed all claims on 17 July 2017. The Employment Appeal Tribunal (Choudhury P) dismissed Simpson's appeal on 21 June 2019. Permission to appeal to the Court of Appeal was granted and the appeal was heard on 5 November 2020.

Nature of the claim and issues

• Nature of claim: multiple alleged protected disclosures concerning traders’ conduct (including front-running, misleading clients, circumvention of customer due diligence and suspected improper trading by a colleague awaiting FCA approval) and that those protected disclosures were the reason or principal reason for dismissal.
• Issues framed: (i) whether communications relied upon amounted to qualifying/protected disclosures under s.43B and associated provisions; (ii) whether the Employment Tribunal complied with Rule 62 in setting out and applying the law; (iii) whether the tribunal should have aggregated communications; (iv) whether the tribunal applied correctly the tests of "information" versus "allegation", reasonable belief, and public interest; and (v) whether the true reason for dismissal was the protected disclosures or legitimate concerns about the claimant's conduct and teamwork.

Reasoning and findings

The tribunal distilled the claimant's case into 37 specified communications and analysed them individually and in context. It found pervasive vagueness, equivocation and a tendency to speculate rather than to disclose concrete information with dates, traders and counterparties. Much of the claimant's conduct was found to relate to personal grievances about commission allocation and earnings rather than matters in the public interest. The tribunal considered the claimant's failure to report directly and promptly to Compliance despite being an FCA‑approved professional as indicative that he did not genuinely and reasonably believe there were regulatory breaches. The tribunal found that the decision to dismiss was taken by Mr Neilly for reasons of trust, teamwork, attendance and conduct, and that those reasons were genuine and not the product of manipulation. The Court of Appeal held that these findings of fact were open to the tribunal on the evidence, that errors of law alleged (including under Rule 62 and on aggregation of communications) did not undermine the outcome, and dismissed the appeal.

Appeal dismissed. The Court of Appeal concluded that the Employment Tribunal's detailed factual findings — that none of the communications qualified as protected disclosures (s.43B) because they lacked sufficient specific factual content, did not demonstrate a genuine reasonable belief in regulatory breaches and were often motivated by personal commission disputes, and that the dismissal decision by Mr Neilly was for genuine non‑whistleblowing reasons of trust, teamwork and attendance — were open on the evidence. Alleged procedural shortcomings (Rule 62) and legal submissions about aggregation, the information/allegation distinction, reasonable belief and public interest did not show material error.

Employment Tribunal: hearing over seven days, judgment dismissing all claims promulgated 17 July 2017. Employment Appeal Tribunal (Choudhury P, UKEAT/0016/18/DA) appeal dismissed 21 June 2019. Permission to appeal to the Court of Appeal granted 15 November 2019. Court of Appeal (Bean LJ, Henderson LJ, Rose LJ) dismissed the appeal on 27 November 2020 ([2020] EWCA Civ 1601).