A U.K. employment tribunal’s ruling that a former BP employee was not entitled to whistleblower protection has shone a spotlight on the legal issues workers must consider ahead of speaking up.
Jonathan Zarembok claimed he was fired as a trader at the oil company after raising concerns bribery and corruption was taking place in Nigeria through use of local agents and their dealings with state oil company NNPC.
The tribunal ruled last month Zarembok’s claims did not amount to “protected disclosures” because his concerns “did not tend to show that any wrongdoing was likely rather than merely possible.”
The tribunal also ruled Zarembok did not raise his concerns because of any public interest issue, although he could have done so.
Instead, it held BP fairly dismissed him on the basis the concerns he held caused a fundamental breakdown in trust between him and his colleagues, making it impossible for their working relationship to be restored.
Zarembok raised his bribery concerns following a disagreement about potential employee benefits post his return to work from paternity leave.
“This judgment is a stark reminder whistleblowing protection is only afforded to those workers who make protected disclosures in good faith and certainly not to individuals who make a whistleblowing claim merely as a litigation tactic,” said Neil Robson, partner at law firm Katten UK.
Robson added, “It’s also clear that even if a worker is making the protected disclosure genuinely in the public interest, their claim will not succeed where there are only rumors of wrongdoing. Fundamentally, a worker must establish the relevant failure or wrongdoing has occurred, is ongoing, or is likely to occur.”
“If the bar for bringing a successful whistleblowing claim is too high, it may have a chilling effect on would-be whistleblowers, who, fearing they will not be able to meet all the various legal tests to have protection, may decide not to say anything or simply leave their employer.”
Fudia Smartt, Employment Partner, Spencer West
To gain protection under the U.K. whistleblowing regime, a worker must make a “protected disclosure” in line with strict legislative procedures set forth in the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998. Such a disclosure must be in the “public interest” and involve providing information to the employer or a “prescribed person” (i.e., a regulator) that—in the reasonable belief of the worker—the employer has failed to comply with its legal obligations or wrongdoing is likely to occur.
Clive Howard, employment partner at Keystone Law, described the Zarembok judgment as “odd” and said it “should be treated warily.” He believes the decision “may well give concern to potential whistleblowers” but added that “any concern should be mitigated by such individuals considering their case properly at an early stage.”
“Whistleblowers need to be able to set out a reasonable belief if the action complained of goes ahead, it is likely there will be wrongdoing. That’s why the disclosure is being made,” said Howard. “And to address the obstacle put in place by this particular employment tribunal on public interest, the whistleblower should consciously consider why the disclosure is in the public interest—not usually a difficult requirement.”
Fudia Smartt, employment partner with law firm Spencer West, does not think the case raises the evidence threshold but instead “highlights a key part of the legal test for whistleblower protection,” namely “the fact the subjective belief a worker has will only be protected so long as a tribunal determines it was reasonable for them to hold such a belief.”
Smartt said while the case does not break new ground, it “serves as a timely reminder it can be difficult for a claimant to bring successful whistleblowing claims.”
“Judgments like these highlight the tension with whistleblowing legislation,” she said. “On the one hand, it is right employees cannot easily make spurious claims of wrongdoing to maximize potential settlements.”
However, said Smartt, “If the bar for bringing a successful whistleblowing claim is too high, it may have a chilling effect on would-be whistleblowers, who, fearing they will not be able to meet all the various legal tests to have protection, may decide not to say anything or simply leave their employer.”
She added given the increased regulatory focus for organizations to encourage “speak-up” cultures, “Perhaps now is the time for Parliament to re-examine the whistleblowing legislation to see if it has got the balance right.”