Fri 18 Dec 2020

Court of Appeal confirms whistleblowing disclosures can be aggregated

But none of the 37 disclosures in this case amounted to a protected disclosure

Simpson v Cantor Fitzgerald is the sort of case that gives lawyers something to really get their teeth into - but not necessarily in a good way.  The whistleblowing claim set out 37 different "communications" which took place on specific dates over a period of months and covered several different events, and the issues arising in each had a good deal of crossover.  The claimant alleged - although from the case report it appears not with any great clarity - that, when aggregated together, the communications amounted to four protected disclosures.

Mr Simpson had been employed by Cantor Fitzgerald for a period of approximately 10 months in 2015 - not long enough to be able to claim regular unfair dismissal when his contract was terminated.  However, he could, and did make a claim for automatic unfair dismissal claiming the reason or principal reason for his dismissal was the making of the protected disclosures.  His claim was unsuccessful before the Employment Tribunal.

Dissatisfied with this result Mr Simpson appealed to the EAT on a number of grounds, including that the Employment Tribunal had failed to consider whether the communications, when aggregated rather than treated as separate communications, amounted to a protected disclosure.  He also argued that the Tribunal had failed to direct itself as to the requirements of a protected disclosure.  When the EAT dismissed that appeal he appealed again to the Court of Appeal on almost identical grounds. 

The Court of Appeal also dismissed the appeal.  However, in doing so it endorsed the decision of the EAT in a previous case - Norbrook Laboratories (GB) Ltd v Shaw - that it is possible for several communications to cumulatively amount to a qualifying disclosure, even if taken individually they would not.  Whether multiple communications can, when taken together, amount to a protected disclosure will be a question of fact in each case.  This was, according to the Court, "no more than common sense". 

The Court also re-iterated that there was no "rigid dichotomy between 'information' on the one hand and 'allegations' on the other" when it came to assessing whether a communication amounted to a protected disclosure.  By way of background, in 2009 the EAT had issued a judgement - Cavendish Munro Professional Risks Management Ltd v Geduld - stating that in order to be protected a disclosure must involve information, and not simply voice a concern or raise an allegation.  That had been taken to suggest that the two were mutually exclusive and that an allegation alone would never qualify as a protected disclosure.  That suggestion had been rejected by the Court of Appeal in 2018 in Kilraine v London Borough of Wandsworth.  The Court of Appeal in Simpson endorsed the judgement in Kilraine, agreeing that in some cases a statement that might be characterised as an allegation would also constitute information and amount to a qualifying disclosure.  What was crucial to the assessment was whether the statement had sufficient factual content and was sufficiently specific.  

While bringing further clarity to these two issues, neither of these conclusions helped Mr Simpson.  The Employment Tribunal in Mr Simpson's case had found that none of the 37 communications amounted to a protected disclosure whether read in isolation or by reference to previous communications, and that, in any event, they were not the reason or principal reason for his dismissal, so the Court of Appeal's findings did not help him. 

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