Following the decision in Chesterton v Nurmohamed, the Employment Appeal Tribunal held in Parsons v Airplus International that if the only motivation for making a disclosure is self-interest, it will not qualify as a protective disclosure against whistleblowing. Concern for the public interest must also form a part of the motivation (either primary or secondary to the self-interest element).
Ms Parsons (the Claimant) commenced employment with Airplus International (the Respondent) on 17th August 2015. Her employment was subsequently terminated by Airplus International on 22nd September 2015. During the short course of her employment, Ms Parsons was employed as the Legal and Compliance officer. Ms Parsons was concerned that Airplus International had no consumer credit license or an appointed Money Laundering Reporting Officer (“MLRO”), in part because she was anxious about personal accountability in the role. In both instances it was ambiguous as to whether Airplus International indeed required one. As a result, Ms Parsons became rude, demanding and unprofessional in her manner.
Airplus International were keen to put Ms Parsons at ease; it was therefore agreed in early September that her job title would be changed from ‘Legal and Compliance Officer’ to ‘Analyst for Regulatory Affairs and Contract Management’. It was anticipated by Airplus International that this change in job title would placate her. Unfortunately, it did not have the desired effect. Ms Parsons subsequently clashed with the Managing Director of Airplus International; it was then decided that Ms Parsons had not improved and her employment should therefore be terminated.
Following her termination, Ms Parsons brought a claim in the Employment Tribunal for automatic unfair dismissal. Ms Parsons alleged that her employment was terminated under s.103A of the Employment Rights Act (“the ERA”) because she had made protected disclosures i.e. in relation to the fact that Airplus International had no consumer credit license or an appointed MLRO.
At first instance the Employment Tribunal (“the ET”) dismissed the claim. The ET was satisfied that there was no connection between Ms Parsons’ disclosures and the termination of her employment. The consensus was that Airplus International had terminated Ms Parsons due to her behaviour. Airplus International did not take the decision to dismiss immediately, but after her change in job title. Furthermore, the ET did not accept Ms Parsons’ MLRO disclosure was ‘protected’ because it was something the company already knew about.
The Claimant appealed to the EAT. The EAT dismissed the appeal on 13th October 2017. The EAT rejected the finding that Ms Parsons’ MLRO disclosure was not protected because Airplus International were already aware of it; but found Ms Parsons’ disclosures were motivated entirely by self-interest and a desire to protect her own position. The relevant disclosures were not made in the public interest. As a consequence, s.43B(1) of the ERA 1996 (which asserts that a qualifying disclosure must be made in the public interest) had not been satisfied. The EAT was also satisfied that Ms Parsons’ employment was terminated due to her behaviour after her disclosures and not due to the disclosures themselves.
This case follows the established position in Chesterton that a disclosure must be made at least partially in the public interest in order to qualify as protected disclosure.