Whistleblowing and conduct: EAT draws line between disclosure and behaviour

The Employment Appeal Tribunal has provided useful guidance on the limits of whistleblowing protection in Argence-Lafon v Ark Syndicate Management, particularly where an employee’s conduct following a disclosure gives rise to separate concerns.

Mr Argence-Lafon made whistleblowing disclosures relating to what he believed to be a potentially fraudulent loss claim. His employer investigated the allegations in full and concluded that there was no fraud. Despite this, Mr Argence-Lafon continued to accuse the company of wrongdoing, maintaining his position even after the investigation had been completed and findings communicated to him.

The tribunal found that, while Mr Argence-Lafon’s original disclosures were protected, his later statements were not. In light of the thorough investigation and its conclusions, it was no longer reasonable for him to continue to hold or express a belief that fraud had occurred. As a result, subsequent accusations fell outside whistleblowing protection.

Following concerns about his conduct and working relationships, Mr Argence-Lafon was placed on a performance improvement plan (PIP). He refused to engage with the process, believing it to be retaliatory. He was ultimately dismissed for a breakdown in trust and confidence, based on his refusal to participate in the PIP and his persistent allegations of fraud after the issue had been properly investigated.

The EAT upheld the tribunal’s finding that the dismissal was not automatically unfair for whistleblowing purposes. The reason for dismissal was the employee’s behaviour, not the making of protected disclosures themselves. This distinction is an important one for employers dealing with whistleblowing situations where conduct issues arise alongside protected activity.

However, the EAT found that the tribunal had failed to properly consider whether the dismissal was unfair on ordinary unfair dismissal grounds. In particular, it had not adequately addressed the role of the internal appeal process and whether any procedural shortcomings at the initial dismissal stage may have been cured on appeal. That aspect of the case was therefore remitted for reconsideration.

The decision highlights the need for employers to separate whistleblowing protection from conduct management, while also ensuring that dismissal processes — including appeals — are handled with care. Even where automatic unfair dismissal is avoided, procedural fairness remains critical to defending an ordinary unfair dismissal claim.