Hearing the case of Dray Simpson vs Cantor Fitzgerald Europe, the Employment Appeal Tribunal (EAT) has provided a useful review of a number of previous findings that have been quoted in other cases that concern whistleblowing.

In the present case, Mr Simpson was a debt salesman with Cantor Fitzgerald Europe who was dismissed by the firm in 2015 after it cited “irreconcilable differences” with his colleagues.

He claimed unfair dismissal, arguing that his employer had taken unfair action against him after he made a series of protected disclosures about trading practices.

The tribunal which heard his claim was scathing about the manner in which he had sought to raise matters of alleged concern with the firm, concluding that communications from him were “cryptic in the extreme” and that his allegations were based on “just making constructs from overheard one-sided telephone conversations”.

He was, it went on, “speculating in making adverse assumptions of market abuse or front-running”, his criticisms were over general, lacking specific details of dates, times, traders and clients and certain complaints were no more than figments of his imagination.

Needless to say, Mr Simpson lost in the tribunal, which concluded that none of the 37 disclosures identified were protected and that, in any event, it was “utterly fanciful” to contend that the reason for his dismissal was that he had made disclosures.

Now his appeal has been rejected by the EAT after it was asked to aggregate the disclosures rather than consider each one separately.

Pointing out that there was no error of law in not aggregating the disclosures, the EAT noted that the tribunal had not applied the now discredited strict dichotomy between allegations and information.

Furthermore, its ruling was in accordance with the Court of Appeal’s decision in Kilraine v London Borough of Wandsworth and had substantially complied with Rule 62 of the ET Rules even if it had not fully, as that Rule requires, set out the legal principles upon which its decision was based.

The EAT also looked at the relevance of Cavendish Munro v Geduld, Babula v Waltham Forest College and Royal Mail Group Ltd v Jhuti.

For full details, see https://assets.publishing.service.gov.uk/media/5d110902e5274a06930754fb/Mr_Dray_Simpson_v_Cantor_Fitzgerald_Europe_UKEAT_0116_18_DA.pdf.

Comment by Croner Associate Director Paul Holcroft

This case serves a useful illustration of the current law surrounding whistleblowing in a company. Specifically, it reaffirms the legal requirements that need to be met in order for a claim to be considered a protected disclosure.

Employers will likely breathe a sigh of relief at this outcome as it demonstrates that it is not enough for an employee just to make a large number of claims of potential wrongdoing in a company; they will still need to meet the strict criteria for making such a claim as outlined here.

That said, while it can be difficult for employees to satisfy the legal requirements of blowing the whistle, I would caution employers to not make any hasty decisions when faced with a potential whistleblower.

The right to make a protected disclosure is still very much a part of the law and dismissing an employee for doing this is automatically unfair, something that can result in substantial fines.

Last reviewed 5 July 2019