Ex-BP trader's failed whistleblower petition to raise reporting bar in the U.K.

The decision by a U.K. employment tribunal that a former BP employee was not entitled to whistleblower protection has shed light on the legal considerations

Jonathan Zarembok said he was terminated from his position as a trader at the oil company after voicing concerns about bribery and corruption in Nigeria through the employment of local agents and their transactions with NNPC.

The court decided last month Zarembok's allegations did not qualify as "protected disclosures" because his concerns "did not tend to demonstrate that any misconduct was more likely than merely possible."

The panel also determined that Zarembok did not raise his concerns due to a matter of public interest, although he could have.

In contrast, it held BP fired him fairly on the grounds that his worries produced a fundamental breach of trust between him and his coworkers, making it impossible to rebuild their working relationship.

A worker seeking protection under the U.K. whistleblowing regime must make a "protected disclosure" in accordance with the Employment Rights Act of 1996 and the Public Interest Disclosure Act of 1998. Such a disclosure must be in the "public interest" and involve disclosing information to the employer or a "designated person" (i.e., a regulator) that, in the worker's reasonable view, the employer has failed to comply with its legal obligations or that misconduct is imminent.

Clive Howard, employment partner at Keystone Law, characterised the Zarembok decision as "strange" and advised that it "should be viewed with caution." He believes that the ruling "may very well cause alarm among potential whistleblowers," but he adds that "such concern should be minimised by such individuals evaluating their case thoroughly and promptly."

“Whistleblowers need to be able to set out a reasonable belief if the action complained of goes ahead, it is likely there will be wrongdoing. That’s why the disclosure is being made,” said Howard. “And to address the obstacle put in place by this particular employment tribunal on public interest, the whistleblower should consciously consider why the disclosure is in the public interest—not usually a difficult requirement.”

Fudia Smartt, an employment partner at the law firm Spencer West, does not believe the case raises the evidence threshold, but rather "highlights a key component of the legal test for whistleblower protection," namely "the fact that a worker's subjective belief is only protected if a tribunal determines it was reasonable for them to hold such a belief."

Smartt said while the case does not break new ground, it “serves as a timely reminder it can be difficult for a claimant to bring successful whistleblowing claims.”

“Judgments like these highlight the tension with whistleblowing legislation,” she said. “On the one hand, it is right employees cannot easily make spurious claims of wrongdoing to maximize potential settlements.”

However, said Smartt, “If the bar for bringing a successful whistleblowing claim is too high, it may have a chilling effect on would-be whistleblowers, who, fearing they will not be able to meet all the various legal tests to have protection, may decide not to say anything or simply leave their employer.”

"Perhaps now is the time for Parliament to re-examine the whistleblowing legislation to see if it has got the balance right," she noted, in light of the heightened regulatory emphasis on firms' "speak-up" cultures.

Zarembok's bribery worries arose after he returned from paternity leave and a debate arose around potential employee benefits.

“This judgment is a stark reminder whistleblowing protection is only afforded to those workers who make protected disclosures in good faith and certainly not to individuals who make a whistleblowing claim merely as a litigation tactic,” said Neil Robson, partner at law firm Katten UK.

Robson added, “It’s also clear that even if a worker is making the protected disclosure genuinely in the public interest, their claim will not succeed where there are only rumors of wrongdoing. Fundamentally, a worker must establish the relevant failure or wrongdoing has occurred, is ongoing, or is likely to occur.”

By fLEXI tEAM