A recent case from the Employment Appeal Tribunal (EAT), Argence-Lafon v Ark Syndicate Management, may offer some reassurance to employers dealing with difficult employees in the context of whistleblowing allegations. 

Background

The Respondent in this case was an insurance company, dealing with a claim arising from an alleged underground blowout whilst drilling an oil well.  The Claimant made a number of protected disclosures alleging that this claim was potentially fraudulent.  The concerns were fully investigated by relevant experts and the Respondent was satisfied that they were unsubstantiated.  However, the Claimant continued to raise concerns regarding the claim, repeatedly refusing to accept the expert findings. 

The Claimant was subsequently set performance objectives, and later put on a formal performance improvement plan (PIP).  Throughout this period, the Claimant continued to raise concerns relating to the alleged fraudulent claim, despite the Respondent having made clear that the matter had been fully investigated and dealt with, and the Claimant urged to ‘move on’.  Further, the Claimant submitted a grievance relating to the PIP, and alleging that two managers had been personally complicit in the alleged fraud.

The Claimant’s grievance was not upheld, and he continuesd to fail to confirm his agreement to the performance objectives or to suggest alternative objectives.  He also continued to assert that the PIP was a punishment for his alleged protected disclosures.  The Claimant was invited to a disciplinary meeting and was dismissed on grounds that there had been a complete breakdown of the relationship of trust and confidence, on the basis that he:

1. continued to maintain that his managers had been complicit in an alleged fraud, notwithstanding that the investigation found that no fraud had occurred; and
2. that he had failed to engage with the PIP and there was no reasonable prospect that he would ever do so.

The Claim

The Claimant submitted an Employment Tribunal claim, alleging that he had been subjected to a detriment and subsequently dismissed because of the alleged protected disclosures.  He maintained that the performance objectives were set as a result of his initial protected disclosures, and the PIP and his dismissal arose because of the later protected disclosures, made following the original investigation which found that no fraud had taken place.

The Outcome

The Employment Tribunal made three findings, upheld on appeal by the EAT, which will be of interest to employers dealing with similar situations:

1. In light of the full investigation which had taken place following the initial disclosures, it was no longer reasonable for the employee to continue to believe that the claim was potentially fraudulent.  This meant that the continued allegations made by the Claimant did not amount to further protected disclosures, as he could not have had a reasonable belief that they tended to disclose wrongdoing or were in the public interest; and
2. The detriments complained of were not on the grounds of making the earlier protected disclosures; and
3. The reason, or the principal reason, for the Claimant’s dismissal was not on the grounds of making protected disclosures, but rather on account of the Claimant’s behaviour. 

Key Takeaways

Whilst the EAT sent the claim back to the Employment Tribunal to determine whether the dismissal was unfair under ‘normal’ unfair dismissal rules, regardless of the outcome this case is likely to be of interest to employers facing repeated whistleblowing complaints.

In this case, the Respondent was able to demonstrate that it was not reasonable for the Claimant to continue to believe that the information he disclosed tended to show wrongdoing, as a direct result of the way in which it had dealt with the initial complaints.  Had the Respondent not taken the initial complaints seriously, or had it failed to properly investigate the concerns which had been raised, it would likely not have been in a position to do so.

In any event, the Tribunal accepted that alleged detriments were not on grounds of the disclosures.  The Claimant’s managers had supported and encouraged the Claimant in raising his concerns, and these had been taken seriously and investigated thoroughly.  There had been no attempt to ignore them or brush them under the carpet, and the way in which these were addressed played a significant part in the Tribunal’s willingness to find that the making of the disclosures played no part in the later decisions of the Respondent.

Employers should therefore take note of the importance of following whistleblowing procedures thoroughly and ensuring that appropriate investigations take place whenever such complaints are raised.  The way in which such complaints are managed may well be vital in defending any subsequent Employment Tribunal proceedings.

Whistleblowing complaints can be time-consuming and tricky to handle, but the team at Tyr are always on hand to assist in advising in relation to such complaints where required.

Contact details

Gemma.sherbourne@tyrlaw.co.uk +44 (0) 7535 652 758 +44 (0) 113 340 0694