UK: Whistleblowing – rulings on claims against colleagues working abroad, the importance of the employer’s and whistleblower’s motivation, and scope of remedy for detriment
- In its first ruling on the issue, the EAT has ruled that an employee can bring a whistleblowing detriment claim in an English employment tribunal against their colleagues working overseas provided the “substantial connection” test (previously only applied to claims by an overseas employee against their employer) is satisfied. The tribunal has to assess the strength of the connection between each individual respondent and Great Britain and British employment law. In this case there was a sufficiently strong connection where the claimant and her colleagues all worked under English law contracts with the UK Government in an EU mission in Kosovo. (Bamieh v EULEX)
- Whistleblowing law does not protect an employee who makes a disclosure purely out of self-interest and with no reasonable belief in a public interest. In Parsons v Airplus, a recently recruited Legal and Compliance Officer raised concerns as to whether the company was taking minutes of key decisions purely because she was worried about her own potential personal liability; the ET found that she did not reasonably believe her disclosures to be in the public interest so they were not protected. She did make other protected disclosures, but was dismissed for the manner in which she raised her concerns and her behaviour with colleagues rather than because of the disclosures, and so her dismissal was not automatically unfair.
- A claim for whistleblowing detriment by a colleague will only succeed if it can be shown that the colleague was personally motivated by the disclosure. It is not possible to bring a claim that the decision to take detrimental action by someone not motivated by the disclosure was influenced or manipulated by someone else who was so motivated. This will normally be the case for dismissals too, although in some cases it may be possible to attribute the motivation of someone other than the dismissing officer to the employer (for example, a manager with responsibility for the disciplinary investigation). (Malik v Cenkos Securities Plc)
- The EAT in Wilsons Solicitors LLP v Roberts has confirmed that a claimant ineligible to bring a whistleblowing dismissal claim may nevertheless be able to seek compensation for detriment covering post-termination losses on the ground that they are attributable to an unlawful pre-termination detriment. In this case the claimant was an LLP member who alleged that he suffered detriment for having made protected disclosures; he was lawfully expelled from the partnership and claimed that his post-termination losses were attributable to the pre-termination detriments. His claim was allowed to proceed to determine causation as a question of fact.