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Whistleblowing - Not Every Disclosure Deserves Protection

In order to qualify for legal protection, whistleblowers must genuinely believe that the disclosures they make to their employers are justified and in the public interest. The Court of Appeal underlined the point in a case concerning a banker who was sacked after making serial allegations of malpractice against colleagues (Simpson v Cantor Fitzgerald Europe).

After being recruited to a senior role by an investment bank, the man survived in the job for less than a year prior to his dismissal. He later launched Employment Tribunal (ET) proceedings, alleging that he had been subjected to detrimental treatment for whistleblowing and that his dismissal was automatically unfair.

He claimed to have made 37 disclosures to his employer which qualified for whistleblowing protection. They included allegations that colleagues had given misleading information to clients and had engaged in an illegal trading practice. Taken together, the disclosures formed a narrative of alleged misconduct constantly taking place around him and of colleagues rebuffing his complaints.

In rejecting his case, however, the ET found that none of the relevant communications with his employer was a protected disclosure. It was in any event utterly fanciful to assert that they formed the principal reason for his dismissal. The ultimate reason why he lost his job, the ET concluded, was his distrustful and obstructive behaviour which made it utterly impossible for his team to work with him.

Dismissing his appeal against that outcome, the Court noted that it was really not difficult to understand why he lost his case given the corrosive and ultimately insurmountable lack of trust between him and his colleagues. The manager who dismissed him was appalled by his poor attendance record and the reasons for his decision were genuine and not the result of manipulation by others.

The ET was entitled to conclude on the evidence that the communications were not protected disclosures, either because they were insufficiently specific or because the man did not genuinely believe that the information contained in them tended to show malpractice at the bank.

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