Whistleblowing Claims and the Gaming of the System: What Employers Need to Know about Self Serving Disclosures and the Requirement for Public Interest

This is a pattern that most employers will recognise. An employee faces a performance management (disciplinary / grievance / sickness management). The relationship deteriorates.  The employee goes off sick and allegations are made by the employee about regulatory compliance, financial impropriety, or some other matter which the individual frames (either immediately or after the fact) as a whistleblowing disclosure.  All in a cynical effort to bypass the unfair dismissal cap and the (current) two-year qualifying period.   

Too frequently employers jump to the conclusion that the employee’s disclosures are solely self serving and as such not in the public interest.  Often such disclosures are self serving and are a ploy to up the stakes and increase bargaining power.  However, the Employment Appeal Tribunal decision in Bibescu v Clare Jenner t/a Jenners is a reminder that employee motives do not negate public interest.   

The Facts 

Ms Bibescu was employed as an accountant. Concerns arose about her performance. Her employer brought in a sub-contractor to 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 subsequently dismissed for poor performance and brought claims of automatic unfair dismissal and detriment on whistleblowing grounds. 

The Decisions 

Although the Employment 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.  The Employment Appeal Tribunal upheld the ET’s dismissal of the automatic unfair dismissal claim, finding that the principle reason for dismissal was performance, BUT it allowed the appeal on the whistleblowing detriment claim, remitting that to a freshly constituted tribunal.   

The ET made two key errors – firstly by focusing on Ms Bibescu’s motive in making the allegations, rather than whether the disclosures were in the public interest and whether Ms Bibescu’s belief in them was reasonable, and secondly by failing to determine whether she believed them to be a disclosure of the kind listed in s43B (1)(a)–(f).   

Where the Tribunal Went Wrong and Why it Matters 

Although the above gives you the headlines, it is worth considering the errors of law the EAT identified in the ET’s reasoning.  

Firstly, the tribunal concluded that Ms Bibescu’s disclosures were not made in the public interest because her motive was to discredit the subcontractor. That reasoning is wrong in law. 

The statutory test under s43B(1) of the Employment Rights Act 1996, as interpreted following Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 (Nurmohamed), is not whether the disclosure was altruistically motivated. The question is whether the worker reasonably believed that the disclosure was in the public interest. Motive and belief are not the same thing.  A worker can make a disclosure partly to protect themselves, partly out of frustration, and partly (ahem) out of genuine concern — and it may well still qualify. The question of public interest element goes to the worker’s reasonable belief at the time of the disclosure, not to the purity of their intentions. 

In Nurmohamed the Court of Appeal was clear that a disclosure can be in the public interest even if it also serves the employee’s personal interest, and suggested looking at: 

• The number of people affected: 

• The nature of the interests involved 

• The nature of the wrongdoing 

• The identity of the alleged wrongdoer. 

Secondly, the ET had conflated the actual wrongdoing with the worker’s belief.  It assessed whether the alleged wrongdoing (disqualification and lack of professional accreditation) had actually occurred, rather than whether Ms Bibescu herself believed that her disclosures tended to show one or more of the categories of wrongdoing listed at s43B(1)(a) to (f) of the ERA 1996. 

The key reminder there being that the statutory framework does not require that the wrongdoing be proven. It requires that the worker have a genuine and reasonable belief that the information they are disclosing tends to show something within the statutory categories (in this instance a breach of a legal obligation).  The question of whether the subcontractor was in fact disqualified, or whether his registration at Companies House was in fact irregular, is a separate question from whether Ms Bibescu genuinely and reasonably believed that to be the case. 

Key points for employers 

Document performance concerns as soon as they arise.  In this instance the employer had documented its concern about Ms Bibescu’s work before any disclosure was made.  An employer who has built a paper trail before any disclosure is made is in a materially stronger position than one who scrambles to construct a rationale after the fact. 

Do not dismiss self serving disclosures. Carefully consider whether they may in fact be self-serving AND in the public interest. 

Respond to disclosures in a structured, documented, and proportionate way.  Address employee issues (performance concerns, management of sickness absence, grievances, misconduct) as independently of the disclosure.  Respond to any disclosure on its own terms and ensure that any subsequent treatment of the employee cannot be characterised as a detriment flowing from the act of disclosure rather than from the underlying conduct or capability issues.

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