Is an employee protected under whistleblowing law where the employee's disclosure is motivated by self-interest?
Under rights provided for within the Employment Rights Act 1996, a dismissal will be automatically unfair where the employee succeeds in arguing that the sole or principal reason that they were dismissed was that they made a protected disclosure. This right also applies where the employee is subject to a detriment because of the protected disclosure.
For the above to apply, the employee making the disclosure must reasonably believe that they were acting in the public interest and that the disclosure tends to show a miscarriage of justice, a failure to comply with a legal obligation, a criminal offence, a health and safety breach, damage to the environment, or the covering up of wrongdoing in relation to the categories described.
In the case of Miss Elena Bibescu v Clare Jenner Ltd t/a Jenners [2026] EAT 30, Elena Bibescu (EB) worked as an accountant for her employer. The employer had concerns over her performance in that role and, as things had not improved despite raising those concerns, they instructed a subcontractor, Mr Grimes (G), to peer review EB’s work due to her mistakes.
EB was not happy with the appointment of G and wanted a meeting with her employer on the matter. However, before any meeting took place, EB carried out research on G at Companies House and found that he had previously been disqualified as a director but still appeared as a director of a company associated with his wife, and that he was not a member of the Association of Chartered Certified Accountants (ACCA). EB raised both points at her performance meeting on 8 June 2020 with her employer.
Following the meeting, EB continued to make mistakes as identified by G, culminating in friction between EB and G. On 11 June 2020, the employer dismissed EB based on her poor performance and her inability to work with G.
EB had short service and therefore could not bring a claim for ordinary unfair dismissal. Instead, she based her claim on whistleblowing disclosures made to her employer about G being a disqualified director and not being a member of ACCA. She claimed that she had been automatically unfairly dismissed for making protected disclosures and had also been subjected to detriments (such as a hostile workplace environment and the formal dismissal action).
However, the Employment Tribunal (ET) disagreed. It held that the reason for dismissal was not her disclosures but her repeated poor performance, which had been raised by the employer before these disclosures were made. The ET also held that the disclosures were not protected because they were made in EB’s own interest rather than the public interest and did not tend to show one of the relevant types of wrongdoing. EB appealed.
The Employment Appeal Tribunal (EAT) agreed with the ET that they were entitled to decide, on the facts, that the principal reason for the dismissal was poor performance and errors, and therefore EB had not been automatically unfairly dismissed. However, the EAT went on to decide that the ET should have explored whether EB genuinely believed that her disclosures were in the public interest and whether that belief was reasonable, rather than substituting its own view that they were not.
As there was also no express conclusion on EB’s whistleblowing detriment complaint by the ET, the case was remitted back to a different ET to decide whether the disclosures made by EB were protected and, if so, whether EB suffered a detriment as a result of those disclosures.
It appears that an employee could still receive protection under whistleblowing law even if the motive is self-interest, as long as the employee had a reasonable belief that the disclosure was in the public interest. Employers must therefore be mindful of ensuring that such matters are addressed fairly and in line with their whistleblowing policy where issues are raised.
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