Employees will be protected as whistleblowers if they have disclosed information that they reasonably believe tends to show that someone has failed to comply with a specified matter – in this case a legal obligation – and that the disclosure is made in the public interest. In Simpson v Cantor Fitzgerald an employee who had made 37 separate communications to his employer could not persuade a tribunal that any of them were protected disclosures, because they did not have sufficient factual content.
Mr Simpson was employed between February and December 2015. During his employment he made a series of complaints relating to the trading practices of his employer and alleged regulatory breaches. He was dismissed following a complete breakdown in relations with his team and alleged that this was automatically unfair. The employment tribunal rejected his claim. It found that his communications were "cryptic in the extreme", over general and lacked specific detail (for example, simply referring to "issues" or hypothetical allegations) and that he raised complaints because of concerns about commission payments. As such it found that none of the disclosures were protected disclosures. The claimant appealed, arguing (amongst other things) that the tribunal should have aggregated the disclosures and considered their collective status and effect and that it had not recognised that there is no bright-line distinction between providing information on one hand and making allegations on the other.
The EAT dismissed both grounds of appeal. Two or more communications may disclose the necessary information when taken together, but this is a question of fact. Aggregation may be necessary or appropriate where one communication refers back to an earlier one. However, in this situation the claimant was relying on a large number of communications but had not identified which should be grouped together to support one or more alleged disclosures. If there was no obvious link between the different communications, the tribunal was not obliged to aggregate all the communications in the way suggested.
It was also wrong to suggest that the tribunal had applied a "bright line distinction" between information and allegations. The tribunal had to assess whether any of the disclosures had sufficient factual content and specificity so as to be capable of showing a breach of a legal obligation. The substance of a disclosure is more important than the form, so a communication couched as a query could amount to a disclosure of information if it had sufficient factual content. The tribunal had taken the correct approach by analysing each communication and was clearly entitled to find that the lack of detail and specificity meant that information had not been disclosed.
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