WHISTLEBLOWING or PERSONAL MOTIVE? EAT CLARIFIES THE TEST

The EAT has revisited the approach to whistleblowing claims in Bibescu v Clare Jenner t/a Jenners, highlighting how easily tribunals can fall into the wrong line of reasoning when assessing protected disclosures.

Ms Bibescu worked as an accountant and had been subject to ongoing performance concerns over a period of time. In response to issues with the quality of her work, a sub-contractor, Mr Grimes, was brought in to carry out a review. Ms Bibescu was unhappy with this arrangement and, ahead of a meeting, carried out her own research into Mr Grimes.

At that meeting, she raised concerns that he had previously been disqualified as a director and was not a member of a professional accounting body. Shortly afterwards and following continued concerns about her work and working relationships, Ms Bibescu was dismissed for poor performance.

She brought claims for automatic unfair dismissal and whistleblowing detriment.

The tribunal found that the reason for dismissal was her performance, pointing to the fact that concerns had been raised well before any disclosures were made. On that basis, the automatic unfair dismissal claim failed — a conclusion the EAT agreed with.

However, the EAT identified clear errors in how the tribunal approached the question of whether Ms Bibescu’s disclosures were protected.

In particular, the tribunal had placed too much weight on her motive, concluding that the disclosures were not made in the public interest because they were intended to discredit Mr Grimes. The EAT made clear that this is not the correct test. The focus should be on whether the employee believed the disclosure was in the public interest and whether that belief was reasonable — not why they chose to raise it.

The tribunal also failed to properly consider whether Ms Bibescu believed her disclosures pointed to a relevant type of wrongdoing under the legislation, instead substituting its own assessment of the facts.

As a result, the detriment claims have been sent back to a fresh tribunal for reconsideration.

What does this mean for employers?

This case is a useful reminder that whistleblowing protection does not fall away simply because an employee may have mixed motives. Even where concerns are raised in a personal or contentious context, protection may still apply if there is a reasonable belief that the disclosure is in the public interest.

At the same time, the decision highlights the value of clearly evidencing performance concerns. Where issues are documented and pre-date any disclosures, employers will be in a stronger position to defend claims that dismissal was linked to whistleblowing.