Argence-Lafon v Ark Syndicate Management Ltd: Managing whistleblowing to prevent escalation and limit risk

The Employment Tribunal found that Mr Argence-Lafon had not been subjected to detriment. His employer had undertaken a thorough investigation into his claims and had reasonable grounds for ultimately dismissing his concerns.

Once the investigation concluded, the employee should have accepted the employer’s position and moved on. The Tribunal concluded that the imposition of a performance improvement plan was unlikely to be an act of retaliation. Instead, it was a legitimate measure to help him return to the role he was employed to perform, which he had been failing to do.

The Employment Appeal Tribunal (EAT) upheld this aspect of the decision. It found that the employee had clearly abandoned his duties in pursuit of his allegations, and it was reasonable for the employer to attempt to refocus him on his work. This conclusion was supported by the independent investigations, which confirmed that there was no fraudulent behaviour. The EAT emphasised that employers do not need to prove with absolute certainty what occurred, but they must act reasonably based on the evidence available. While whistleblowing protection prevents retribution, it does not make an employee immune from criticism or lawful management instructions.

However, the dismissal was found to be procedurally unfair. The Employment Tribunal concluded that the disclosures were not the reason for the dismissal, but the employer had failed to adequately notify the employee of the allegations regarding the breakdown of trust and confidence before the disciplinary hearing. In other words, he was not given a fair opportunity to respond. The Employment Appeal Tribunal later allowed the employer’s cross-appeal, noting that the Tribunal had not assessed whether the internal appeal process had remedied the procedural unfairness. This issue has now been remitted to the Employment Tribunal for reconsideration.

How to deal with whistleblower accusations

When managing a whistleblowing situation, employers must balance taking allegations seriously with maintaining operational performance and fairness. The following steps can help reduce risk and manage the process effectively:

• Investigate thoroughly: Take all whistleblowing concerns seriously. Use external experts where appropriate to support the reasonableness of your findings. Shallow investigations increase risk.
• Document performance issues: If performance declines, ensure shortcomings are clearly recorded and that employees are given a fair opportunity to improve.
• Consider context carefully: Performance issues may arise from stress, distraction, or absence linked to whistleblowing. Carefully assess the situation before taking formal action.
• Focus on behaviour, not disclosure: Any management action, including capability programmes, attendance measures, or references, must be related to the employee’s behaviour or performance, not their protected disclosure.
• Analyse options before acting: Expect that employees may claim retaliation. Review all available options carefully to ensure actions are proportionate and defensible.
• Ensure procedural fairness: Clearly outline any allegations against the employee and allow them adequate time to respond. Remember, a fair reason alone is not enough, fair process is equally critical.