For a whistleblowing claim to succeed, the claimant has to show that they have made a qualifying disclosure. In Dray Simpson v Cantor Fitzgerald Europe, the Court of Appeal held that although the tribunal had not set out the relevant law for dismissing Mr Simpson’s claims, it did not make an error of law when it decided that it was “utterly fanciful” for him to attribute his dismissal to the protected disclosures that he claimed to have made.
Basic facts
Mr Simpson was appointed as the Managing Director of the firm’s Emerging Markets Desk in February 2015. However, after raising his concerns about some of the company’s trading practices with his line manager, he was dismissed in December 2015.
He brought claims of unfair dismissal on the basis that he had made 37 separate protected disclosures (blown the whistle) about trading practices within the company.
Relevant law
Section 103A of the Employment Rights Act 1996 (ERA) states that an employee “who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for his [sic] dismissal is that the employee made a protected disclosure.”
Section 43B ERA states that a “qualifying disclosure” means any disclosure of information which, “in the reasonable belief of the worker making the disclosure is made in the public interest” and tends to show there has been a relevant failure as set out in section 43B a) to f). For example, a person failed or is likely to fail to comply with a legal obligation.
Tribunal and EAT decisions
The tribunal dismissed the claim that the reason for the dismissal was because Mr Simpson had made protected disclosures. It found that he lacked a “reasonable belief” as the disclosures lacked specific, crucial details such as dates, times, traders and clients. In addition, his failure to report his concerns to Compliance showed that in some cases he also lacked a genuine belief in the relevant failure. It concluded that his behaviour made it “utterly impossible” for others to work with him and that his distrust of others was ultimately the reason for his dismissal.
Mr Simpson appealed on the grounds that the tribunal had failed to set out the legal principles on which it had based its decision; ought to have aggregated the disclosures rather than consider each one separately; had failed to properly apply the statutory test as to the requirement of a protected disclosure and had erred in its conclusions as to the reason for his dismissal. After the EAT dismissed his appeal, Mr Simpson appealed again on the same grounds.
Decision of Court of Appeal
Although the Court of Appeal acknowledged that a failure to set out even a brief summary of the relevant law was a breach of tribunal procedural rules, equally it did not mean that the tribunal had made an error of law. As it was clear from the tribunal’s findings that Mr Simpson had lost because it was “utterly fanciful” to attribute his dismissal to the protected disclosures that he claimed to have made, this ground of appeal could not succeed.
As regards the reason for dismissal the Court found that if protected disclosures could not be shown to be the reason for his dismissal any argument that the disclosures should have been found to be protected was academic. Any argument that the decision maker was influenced by others whose views may have been tainted by a protected disclosure also failed as there was no evidence others had prepared or carried out any report on which the decision to dismiss was based.
The Court also dismissed Mr Simpson’s argument that the disclosures ought to have been aggregated rather than considered separately. As the tribunal had found that none of the 37 criticisms he had listed could amount to a protected disclosure, this line of appeal could not assist the argument that he had been dismissed for blowing the whistle.
Although case law has established that tribunals should not create a rigid dichotomy between “information” on the one hand and “allegations” on the other when determining if there has been a protected disclosure, the Court also made clear that it was for the tribunal to decide whether the information was sufficiently factual and specific to constitute a protected disclosure. Given the factual findings made by the tribunal in this case, the Court of Appeal rejected this ground of appeal.
The Court held that the tribunal had also found that Mr Simpson did not make disclosures which he genuinely believed tended to show a breach of regulatory obligations or a legal duty to the company’s clients. As for having a “public interest”, the tribunal repeatedly found that Mr Simpson’s real concern was his own commission payments.
In the view of the Court, if the tribunal had accepted that even some of the disclosures “constituted information which in the actual and reasonable belief of the claimant tended to show malpractice, then the public interest test would no doubt have been quite easily satisfied. But that is not what happened”.
Comment
This case does not alter the law but is a reminder of the legal tests that apply when determining if a protected disclosure has been made. In this case, the claimant fell at the first hurdle as the tribunal found he had not made any protected disclosures at all.