A whistleblower making disclosures about potential wrongdoing
must express a reasonable belief that an identifiable legal
obligation has been breached or will be breached. It is not enough
just to say something is wrong.
Ms Korshunova was a sales executive for Eiger, a broking
business. Eiger would use Bloomberg Chat to liaise with traders,
and Ms Korshunova found that Mr Ashton (the managing director) had
been using her profile to speak to clients without identifying
himself. Ms Korshunova said that it was wrong for Mr Ashton to
impersonate her and asked IT to change her password (which Mr
Ashton had said would be gross misconduct).
Some weeks later, three of Ms Korshunova's accounts were
transferred to junior brokers. After two trading errors and an
argument with Mr Ashton, Ms Korshunova was invited to a
disciplinary hearing for 'failure to follow instructions and
poor performance'. Ms Korshunova was dismissed following a
disciplinary hearing which she declined to attend. The reason given
for dismissal was that she had failed to carry out the reasonable
instructions of a superior (in the form of misusing Eiger's
equipment by changing her password and turning off her computer)
and had quoted the incorrect prices to customers.
Following an unsuccessful internal appeal, Ms Korshunova brought
Employment Tribunal claims alleging whistleblowing detriment in the
removal of her accounts and automatically unfair dismissal on the
grounds of making protected disclosures.
The Employment Appeal Tribunal found that the detrimental
treatment actually came as a result of Ms Korshunova's
insubordination. Whilst it was accepted that Ms Korshunova
genuinely believed that Mr Ashton must have breached some legal
obligation in impersonating her on Bloomberg Chat, she could not
say what the obligation was. There needed to be some form of
identifiable legal obligation in order to establish whether the
belief was a reasonable one.
This case shows that a whistleblower must do more than express a
belief that the employer's actions are wrong. A protected
disclosure needs to actually set out something identifiable,
whether legislation, regulatory rules or industry guidance, that
the employer is in breach of.
Eiger Securities LLP v Korshunova UKEAT/0149/16
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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