Whistleblowing: public interest and employee's motivation

Bibescu v Clare Jenner Ltd t/a Jenner’s

An employee could have a reasonable belief that her disclosures were made in the public interest, even if her sole motive had been to discredit a colleague.

Background

Ms Bibescu worked as an accountant. Her employer had several concerns about her performance and asked a sub-contractor working in the business to ‘peer review’ her work. Ms Bibescu objected to his involvement and disclosed to her employer that the sub-contractor appeared to be disqualified as a director while remaining registered at Companies House and that he was not a member of a recognised professional accounting body. Ms Bibescu was later dismissed for poor performance.

Ms Bibescu did not have sufficient service to bring an ordinary unfair dismissal claim, but she brought claims arguing she had been automatically unfairly dismissed, and subjected to a detriment, for blowing the whistle.

A tribunal dismissed both claims, in part because it focussed on the fact that Ms Bibescu’s motive in making the allegations was to discredit the subcontractor. Ms Bibescu appealed.

EAT decision

The appeal relating to automatic unfair dismissal was rejected but the one relating to the whistleblowing detriment claim was upheld (and remitted to a different tribunal to reconsider).

The tribunal had been entitled to find on the facts before it that the principal reason for Ms Bibescu’s dismissal was her poor performance, particularly given the documented concerns about her work before the disclosures were made.

However, the tribunal had got it wrong in its assessment of whether Ms Bibescu’s disclosures were protected. The tribunal should have considered whether Ms Bibescu genuinely believed that her disclosures were in the public interest and whether that belief was reasonable. Instead, it had wrongly focused on Ms Bibescu’s motive of discrediting the sub-contractor. The tribunal also failed to consider whether Ms Bibescu believed that her disclosures tended to show a relevant type of wrongdoing, instead substituting its own view that they did not.

Comment

On the one hand, this is simply an instance of the tribunal getting the law wrong and being corrected on appeal.

But on the other hand, it’s a useful reminder that even if a worker’s motive for making a disclosure is self-interested, he or she may still qualify for whistleblower protection if they also had a reasonable belief that the disclosure was in the public interest and tends to show some sort of wrongdoing or breach of a legal obligation.

Even if the motive is to discredit a colleague, or some other self-interest, the whistleblower may still have the necessary belief. It is only if a disclosure is purely self-interested that it is likely to fail the public interest test. It is important, therefore, for the employer to be able to show (as it did here) that a dismissal was for a reason separable from the disclosure.