Distinguishing the reason for dismissal in whistleblowing cases

In the UK, employment law gives strong protection to employees who make protected disclosures, perhaps better known as whistleblowing. Missteps in handling situations involving protected disclosures can leave employers exposed to costly claims if they dismiss, or subject an employee to a detriment, for making such disclosures.

A recent Employment Appeal Tribunal case reinforces just how important it is for employers and HR professionals to carefully draw a line in the sand when dealing with an employee’s behaviour or performance issues where they have made disclosures, so as to avoid liability for automatic unfair dismissal or detriment.

Facts in Brief

• An underwriter, Mr Argence-Lafon, raised concerns to his employer about an insurance claim submitted by a client, alleging possible fraud and possible breaches of legal obligations.
• The employer investigated. Loss adjusters and external experts reviewed the claim and concluded that the claim concerned was in fact valid.
• Despite that, Mr Argence-Lafon persisted with his allegations, challenged expert conclusions and even raised further allegations. He also refused to agree to targets/objectives or properly engage with a subsequent Performance Improvement Plan (PIP) believing it was because of his disclosures.
• Eventually, he was dismissed, for a breakdown of trust and confidence.

What Was Protected and What Was Not?

The EAT found that Mr Argence-Lafon’s initial disclosures amounted to protected disclosures because he reasonably believed (based on what he knew then) that there was wrongdoing, and that the disclosures were in the public interest.

However, later disclosures – his continuing insistence of fraud despite full and proper investigation – were not protected, because his belief was no longer reasonable in light of the information available.

What was the reason for his treatment?

The EAT upheld the Tribunal’s findings that while certain detriments had occurred (e.g. setting of objectives, putting him on a PIP), importantly, they were not done because of his protected disclosures, but rather because of his behaviour, rooted in his refusal to comply with the PIP process and to accept the findings of no wrongdoing after extensive investigation. Moreover, the principal reason for dismissal was held not to be the making of protected disclosures, but his conduct and performance failures tied to his persistent allegations of fraud in the face of evidence to the contrary, and his failure to engage with the PIP, among other things.

Conclusion

For employers, the message is that employees cannot act with impunity simply because they have (or may have) made protected disclosures. How businesses respond to those disclosures and any associated behaviour will be critical.

This case demonstrates that what is a reasonable belief is dynamic and what might be a reasonable belief at one point (before investigation) may cease to be reasonable once evidence has been gathered. Investigation is therefore critical in understanding whether an allegation rises to the level of being a protected disclosure, which in turn will inform employers as to the risk of any action that they may wish to take against the employee. It will not always be the case that disclosures and behaviour can be separated in the way they were in this case – for example if an investigation is inconclusive as to wrongdoing – and so businesses must ensure that any subsequent disciplinary or performance-based response is genuinely about behaviour or capability, not retaliation for any disclosure(s). Where such action is warranted, absolute clarity on the reason for any sanction being unrelated to any disclosures, will also be critical to insulate the decision from challenge.

Case reference: Argence-Lafon v Ark Syndicate Management Ltd [2025] EAT 124