The appeal in Dray Simpson v Cantor Fitzgerald Europe runs pretty much the full gamut of whistleblowing dismissal appeal points. As a result, this case is almost as useful as the whistleblowing chapter in a textbook.
The Claimant was MD of the emerging markets desk. Following dismissal for being someone his colleagues couldn't work with, he brought a whistleblowing claim, raising four disclosures. By trial that had increased to 37.
The tribunal, in a strident judgment albeit lacking any discussion of the law, dismissed the claim, finding none of the alleged disclosures were protected and that it was 'utterly fanciful' to state the reason for dismissal was the making of protected disclosures.
The first issue considered by the EAT was whether the lack of discussion of the law offended rule 62 of the ET Rules. The EAT noted that only 'substantial compliance' rather than absolute compliance with the rule is required.
The EAT moved on to consider an argument that the tribunal erred in failing to aggregate the alleged disclosures to consider whether there was protection. The EAT dismissed that ground, holding aggregation was only needed in certain circumstances, such as where disclosure 2 embeds within it disclosure 1 or refers back to it. Here, that wasn't the case, and C couldn't really point to what should be aggregated with what.
Next up were Geduld and Kilraine on whether there was a dichotomy between information & allegation. Unsurprisingly, the EAT followed Kilraine in finding there was not. A disclosure needs not merely to be information but also has to have sufficient factual content to show one of the matters in s43B(1) & which in the Claimant's reasonable belief tends to show it.
The EAT then went on to consider whether a query could satisfy that information requirement. The key point appears to be what information is included in the question's substance and what that says about the belief in its tendency to show the listed matter.
Babula was next, with the EAT using it to reinforce from a different angle that it's not enough for an employee to rely on his own assertion of subjective belief that the information tends to show a breach. For fear of missing out, Chesterton then took the stand. Nothing interesting on this ground; just a useful setting out of the relevant parts of the Court of Appeal judgment.
Jhuti then took its turn, and it was held not to apply in the particular circumstances - probably just as well given that we await the Supreme Court's decision in that case.
Thanks to Jason Braier of 42 Bedford Row for preparing this case summary.
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