Simpson v Cantor Fitzgerald Europe

A tribunal substantially complies with its duty to give reasons if its judgment, read as a whole, enables the parties to identify the issues, findings, relevant law and application. A separate legal-directions section is desirable but is not indispensable.

Under section 43B, there is no rigid distinction between information and allegations or queries. The communication must nevertheless have sufficient factual content and specificity to be capable of tending to show relevant wrongdoing in the worker’s reasonable belief. A worker’s specialist knowledge is relevant to that assessment, but does not displace the objective element of reasonable belief. A genuine and reasonable public-interest belief need not be the worker’s predominant motive.

The claimant, a managing director on the respondent’s emerging-markets desk, alleged that he had been dismissed for making protected disclosures about front-running, regulatory approval and customer-due-diligence practices. He also advanced detriment and commission claims.

The East London Employment Tribunal rejected all claims. It held that none of 37 alleged communications was a qualifying disclosure under section 43B of the Employment Rights Act 1996, and that the dismissal resulted from the claimant’s poor attendance, conduct and breakdown of trust with his team.

The claimant appealed on seven grounds. They concerned the adequacy of the Tribunal’s reasons, aggregation of communications, the meaning of information, reasonable belief, public interest, and the identity and reasoning of the decision-maker.

1. Appeal dismissed. The Tribunal’s omission of a separate legal-directions section was regrettable but did not itself establish an error. Rule 62(5) of the Employment Tribunal Rules of Procedure 2013 requires substantial, rather than slavish, compliance. A failure to achieve substantial compliance is itself an error of law; no additional consequential error need be shown. On a fair reading, the Tribunal had applied the relevant principles.

2. There was no error in declining to aggregate all 37 communications. Communications may together constitute a protected disclosure where an earlier communication is embedded in a later one, but that is a factual question. The worker must identify the combination relied upon and the disclosure said to result. The Tribunal had in any event considered relevant communications in context.

3. Section 43B does not impose a rigid information/allegation dichotomy. A query or allegation may qualify where it contains sufficiently specific factual material which, in the worker’s reasonable belief, tends to show a listed matter. The Tribunal was entitled to find that the claimant’s communications were speculative, vague or unsupported by factual detail.

4. The reasonable-belief inquiry is objective but applied to the worker’s circumstances. Specialist knowledge may support the reasonableness of an insider’s belief, while also requiring proper consideration of the available material. The Tribunal permissibly found that the claimant did not reasonably believe, and in some instances did not believe at all, that the material showed regulatory wrongdoing.

5. A public-interest belief need not be the predominant motive for a disclosure. However, the Tribunal did not apply an impermissible rule that commission-related concerns could never engage the public interest. It found, on the facts, that the claimant’s largely personal commission concerns did not support a genuine or reasonable public-interest belief.

6. Mr Neilly was clearly found to be the sole decision-maker. The alleged manipulators neither decided the dismissal nor had a formal investigative or decision-making role. Their motivation could not therefore be attributed to the respondent. The Tribunal was entitled to find that dismissal was caused by the claimant’s conduct, attendance and loss of trust, rather than any protected disclosure.

• Employment Appeal Tribunal: Appeal dismissed.
• East London Employment Tribunal: The claimant’s protected-disclosure, detriment, dismissal and commission claims were dismissed.