In the case of Miss Elena Bibescu v Clare Jenner Ltd t/a Jenners Miss Bibescu brought a claim against her former employer arguing that she had been automatically unfairly dismissed and  suffered a detriment for making a protected disclosure (whistleblowing).

Ms Bibescu had worked for her employer, an accountancy firm,  for less than two years.  Her principal, Ms Jenner, had raised  concerns about  the quality of Ms Bibescu’s work and had asked a subcontractor, Mr Grimes to “peer review” it. Ms Bibescu was unhappy about her work being reviewed by Mr Grimes and objected to it. She raised concerns about Mr Grimes,  stating that he had been disqualified from being a director and was not a member of the Association of Chartered Certified Accountants. Following this disclosure, Ms Bibescu continued to underperform and was subsequently dismissed for poor performance. 

Ms Bibescu claimed that the concerns she had raised were protected disclosures and that she had been dismissed for raising them. As she did not have the necessary qualifying service to bring an ordinary unfair dismissal claim, she brought an automatic unfair dismissal claim and detriment claim in the Employment Tribunal (ET). 

At first instance, the ET found that Ms Bibescu was dismissed because of her performance, not for making any protected disclosures; the concerns about her work had been well documented before she raised concerns about Mr Grimes. The ET also decided that the disclosures that Ms Bibescu made were not in the public’s interest and focused on Ms Bibescu’s own personal motives for raising those concerns. 

Ms Bibescu appealed to the Employment Appeal Tribunal (EAT) who allowed part of the appeal. It held that although Ms Bibescu had been dismissed because of her poor performance, the ET had erred in deciding Ms Bibescu’s detriment claim and had incorrectly looked at her own motives for complaining about Mr Grimes and not whether she had a reasonable belief that her disclosures were in the public interest.  The judge stated the correct legal test would be to ask whether Ms Bibescu believed the disclosures were in the public’s interest and whether that belief was reasonable. 

As a result, the detriment claims issued by Ms Bibescu have been remitted to a different Tribunal. 

This case reminds employers to keep a solid record of all the discussions with an employee in relation to their performance, particularly when it may lead to dismissal.  Employers should also ensure that they properly deal with any disclosures raised by an employee and keep a well-documented process, remembering that even when something appears to be driven by a personal motive, the employee may still have a reasonable belief that it’s in the public interest.  

For more advice, please contact our Employment Team.