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  • Karen Bulfin

Whistleblowing

An employee who is dismissed for making a public interest disclosure – whistleblowing – can claim unfair dismissal even without the two years’ continuous service that is normally required. What is more, there is no cap placed on the amount of compensation that can be awarded, so successful claims can be very expensive for employers.

In the case of Simpson v Cantor Fitzgerald however, the employee’s claim was unsuccessful. Mr Simpson had been employed for less than a year as a trader for an investment bank when he was dismissed. He claimed that his dismissal was the result of numerous allegations that he had made over the course of his employment about the behaviour of his fellow traders. In all the Tribunal identified 37 specific allegations.

The Tribunal held that none of these were protected disclosures. Broadly, a protected disclosure is a disclosure of information that tends to show that some legal wrongdoing has occurred and which the employee reasonably believes is in the public interest. The Tribunal found that many of Mr Simpson’s disclosures were really just complaints that he had lost out on commission because of the way in which trades were carried out. The real reason he had been dismissed was that ‘distrustful and obstructive’ behaviour had made it ‘utterly impossible for the team to work with him’.

Nevertheless, the case reached the Court of Appeal which upheld the Tribunal’s findings. The Tribunal had been entitled to find that the allegations that he relied on were not protected disclosures – whether because they were insufficiently specific or because Mr Simpson did not genuinely believe that they tended to show wrongdoing on the part of the employer or its employees. In any event, the complaints themselves were not the reason for dismissal. The Tribunal had found that the manager who made the decision to dismiss was not influenced by those allegations, but by the hostile and corrosive attitude that Mr Simpson displayed towards colleagues, as well as his poor timekeeping. He was dismissed because his employer considered him to be a poor team player, not because he had made protected disclosures.

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