In an article first published by Thomson Reuters, Managing Associate, Annabel Mackay, considers the recent EAT decision in Parsons v Airplus International Ltd. Since the Court of Appeal’s decision in Chesterton Global Ltd v Nurmohamed, some commentators consider that it has become more difficult to challenge whistleblowing complaints on the grounds that the disclosures do not meet the public interest test. However, the EAT’s decision in Parsons indicates that disclosures that are made solely for self-interest will not qualify for protection.
Ms Parsons was a non-practising barrister who joined Airplus International Ltd (Airplus) as a Legal and Compliance Officer. Airplus had found it difficult to recruit for the role and recognised that Ms Parsons did not have prior compliance qualifications or experience. She reported to Mr Bullwein, the Associate Director for General Regulatory Affairs for Lufthansa, Airplus' parent company.
During her short period of employment with Airplus, Ms Parsons received negative feedback from colleagues for the way in which she conveyed compliance concerns. According to Mr Bullwein, she “left behind burnt soil pretty much everywhere”. Her employment was terminated after six weeks because she was “a cultural misfit”. Ms Parsons argued that the reason for her dismissal was that she had made a series of protected disclosures.
The alleged disclosures took place within a short period of time. On 7 September 2015, Ms Parsons became aware that Airplus’ Consumer Credit Licence had lapsed in 2013. Ms Parsons emailed Airplus’ Managing Director, Ms Haywood, and Mr Bullwein attaching the Register and advising that a Consumer Credit Licence should be sought. She asked Mr Bullwein to confirm that she would not be personally liable. Ms Haywood replied and indicated that Airplus did not have consumer products. Mr Bullwein asked Ms Parsons to analyse the situation and arrive at a strategy as to how to proceed.
Ms Parsons remained anxious about the Consumer Credit Licence. On 8 September 2015 she had a meeting with Mr Bullwein during which she cried because she was worried about going to prison. Mr Bullwein reassured her that she would not incur personal liability but agreed to change her title to Analyst for Regulatory Affairs and Contract Management in order to address her concerns.
On 9 September 2015, Ms Parsons met with Mr Gibbons, Product Manager for UK and Ireland and discussed a number of compliance issues, including the Consumer Credit Licence. Mr Gibbons explained that a number of the points that Ms Parsons had raised did not apply to Airplus.
Ms Parsons repeated her concerns about the Licence when she and Mr Gibbons attended a subsequent meeting with Ms Haywood. During that meeting Ms Haywood explained that Airplus had looked at this issue in the past and asked Ms Parsons why she thought there was an issue. Ms Parsons responded that she could show why Airplus was being “dodgy” and acting unlawfully. She also raised a concern about Airplus not having a Money Laundering Officer.
As the meeting progressed, Ms Parsons suggested that Airplus should make contact with the FCA via its conciliated approach to reported breaches. She became agitated and said that Mr Gibbons and Ms Haywood could go to prison. Ms Haywood was concerned that Ms Parsons was behaving in a rude and confrontational manner. She later received feedback from a member of the management team who shared her concerns.
Ms Haywood telephoned Mr Bullwein on 9 September and told him about the meeting. They agreed to review the situation the following week. It was hoped that the change in Ms Parson's job title would lead to an improved approach (by reducing her focus on personal liability).
Unfortunately, matters did not improve and there were more complaints by colleagues. On 21 September 2015, Ms Parsons called out to Ms Haywood as she was passing her office and asked if she kept minutes of key decisions. Ms Haywood asked Ms Parsons what she went and Ms Parsons responded, “Do you actually know how to run a Company?” When pressed on why this issue had been raised, Ms Parsons explained that she wanted all compliance decisions recorded so that if her advice was not followed, her position had been documented. Ms Haywood responded, “So you want your ass covered?”, a remark for which she later apologised. After their interaction, Ms Parsons emailed a link to the Companies House website regarding minutes.
Ms Haywood met with Mr Bullwein and updated him on Ms Parson’s conduct and the negative feedback that she had received. A decision was taken to terminate her employment and she received a payment in lieu of two weeks’ notice. Ms Parsons went on to bring a claim that she was unfairly dismissed for having made protected disclosures. The Employment Tribunal found that the disclosure about the Consumer Credit Licence was protected but that the other matters (i.e. the concerns about the Money Laundering Officer and minutes of compliance decisions) were not covered. If they were wrong, they found that these matters did not influence the decision to dismiss and that the reason for dismissal was Ms Parson’s inability to give reasons for her concerns, her failure to investigate the relevant background, her fixation on personal liability and her failure to put forward constructive solutions or to listen to alternative suggestions. The Tribunal noted that Ms Parsons was not dismissed immediately having raised the issue of the Consumer Credit Licence but was invited to investigate the issue and report back to Mr Bullwein. She was also given a chance to improve, having changed her job title.
The EAT was asked to consider whether the Tribunal had reached the correct conclusion regarding the protected disclosures. With regard to the meeting on 21 September 2015, the EAT found that the Tribunal had made a finding of fact that Ms Parsons did not have a reasonable belief that she was making a disclosure in the public interest. Ms Parsons had acted solely for her self-interest. She wanted to make sure that her position was covered in the event that Airplus did not follow her advice.
On appeal Ms Parsons also challenged the finding that the disclosure about the Consumer Credit Licence was not the reason or principal reason for her dismissal, noting the fact that Ms Haywood and Mr Bullwein discussed the potential termination of her employment only two days after the matter was raised. However, the EAT agreed that the termination of Ms Parson’s employment was genuinely separable from the compliance concerns. In this case, the Tribunal had noted the level of support offered to Ms Parsons, including the opportunity to improve, before the decision to terminate her employment was taken. It accepted Airplus’ reason for dismissal, namely that Ms Parsons had failed to meet expectations in her role as compliance officer, generating complaints from colleagues due to her confrontational and uncommercial approach.
This decision is helpful for employers when faced with employees relying on matters which they have raised in a risk or compliance environment. Where the employee is raising matters to "cover themselves" or to advance their own interests, the disclosure will not be protected. However, if the employee had mixed motives (i.e. self-interest and public interest) then they would satisfy the test and following Chesterton it would not be that difficult for somebody in a compliance role to frame their concerns in a way that engaged the public interest as well as their self-interest.
Even where the individual does have a reasonable belief that their disclosure is made in the public interest, an employer can still defend an automatic unfair dismissal claim if the employee was dismissed for reasons that are genuinely separable from the disclosure. Of course, as the EAT noted, this argument can be open to abuse and there can be a fine line in determining whether the disclosure or the manner of the disclosure was objectionable. In this case, Airplus were open to investigating the matters which Ms Parsons raised and had provided a supportive environment. Tribunals may be more sceptical where employers have not investigated concerns or dismissed employees as troublemakers.