The Claimant was a Director in the respondent company which was created by Derry City Council in order to deliver the Derry/Londonderry City of Culture 2013. In April 2012 the Company received significant funding from DCAL, of which it was agreed 15% would be specifically spent on marketing the City of Culture. The claimant cited this condition as a legal obligation he believed was to be broken and so he revealed an internal letter to The Press claiming he feared there was going to be ‘misappropriation of public funds’. He claimed that his ‘whistleblowing’ was a protected disclosure under The Public Interest Disclosure (Northern Ireland) Order 1998. The claimant also claimed Unfair Dismissal arising out of a disciplinary process in which he was found guilty of gross misconduct.
The claims were dismissed. In relation to whether the claimant could show that the relevant failure was ‘likely’ to happen, the Tribunal held that the threshold is not as low as previously held in the case of Boyle v SCA Packaging Ltd (2009) and that the standard is higher than ‘probably or more probable than not’. The tribunal accepted that the ‘purpose for which the disclosure was made’ is always an important factor, but in gauging any potential personal gain where there is no direct monetary advantage, personal gain would need to be the ‘predominant motive’ in order to deprive the disclosure of protection.
The tribunal focused on the justification in disclosing to the press and adopted a robust attitude, citing a number of other relevant stakeholders to whom he could have properly made the disclosure. The respondent was justified in considering him as having committed a serious breach of trust and there could be no successful Unfair Dismissal claim. Encapsulating their decision, the tribunal stated:
"We find that the claimant was essentially the author of his own misfortune... by unjustifiably going straight to the Press when he had other options for going to other bodies with a direct influence and involvement in relation to the funding issue."
Practical lessons from this decision
The tribunal somewhat reformulated what must be in the mind of the prospective whistle-blower by making them demonstrate to a higher standard why they thought there was going to be a failure to meet a legal obligation. This raises the bar for prospective whistle-blowers. Conversely, the tribunal also made it clear that where there is not a direct ‘monetary gain’, the burden to show alleged ‘personal gain’ is heightened. These two findings are somewhat conflicting, but the overall picture is surely discouraging for future protected disclosures. The reason for this is that not every case will focus on the issue of ‘financial/personal gain’ but the requirement to demonstrate that a failure is ‘likely’ is an integral part of any whistleblowing case which invariably now seems a tougher test to satisfy.
You will find the transcripts from all NI tribunal decisions reviewed on the OITFET website: http://forms.employmenttribunalsni.co.uk/OITFET_IWS/(2qqgnebbcda0jhiujrvtr255)/ DecisionSearch.aspx
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