Ben Gorner considers what businesses can learn from a recent EAT ruling on the protection available to whistleblowers
An employee who makes a protected public interest disclosure will have protection against dismissal or detriment where this has been caused by the disclosure. Whether a disclosure qualifies for this protection depends on it being made with the reasonable belief that it is in the public interest and tends to show a criminal offence or a failure to comply with a legal obligation. In practice, this is quite broad in scope and has been found to apply in a wide range of situations in which an employee has informed their employer they are unhappy about a decision made in the organisation.
In any claim, it also has to be established whether a dismissal or detriment has been caused by the protected disclosure. This is often the most difficult part of a whistleblowing claim. If the employer can show that their actions were to address other conduct by the employee, the claim will fail.
The case of Mr O Argence-Lafon v Ark Syndicate Management focused on the issues of whether the disclosures were protected and whether they had been the cause of the claimant’s treatment.
Argence-Lafon, a senior underwriter, raised concerns in late 2019 about a high-value insurance claim, with potential costs of around $53,600,000 (41,010,000).
He suspected that the claim might be fraudulent and made several reports suggesting that it should not be covered. The concerns were...
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