Argence-Lafon v Ark Syndicate – Whistleblower protection for employees & unfair dismissal

If an employer subjects a whistleblower to a detriment, or worse still dismisses them, then the whistleblower has legal protection from day one of their employment. They don’t need two years’ service and the principles of reasonableness required in normal unfair dismissal don’t apply. This is called ‘automatically unfair’ dismissal.

This case is important for two reasons – firstly it shows when a whistleblower won’t be protected and secondly it provides helpful do’s and don’ts for employers.

Overview of the case

The recent case Argence-Lafon v Ark Syndicate Management Ltd is an important one in whistleblowing law. The key facts are as follows:

• The claimant, Mr Argence-Lafon (AL), worked as a senior underwriter. He raised concerns about a claim submitted by ENI (an oil company) for an alleged oil well blowout, believing the claim was fraudulent. Whilst he had also studied as an engineer, he was not a subject matter expert.
• The employer (Ark Syndicate Management) commissioned investigations (including external experts specialising in marine engineering) which concluded the claim was valid, i.e. that there was no evidence of fraud.
• AL nevertheless persisted in his belief, continued to raise allegations of fraud, challenged the findings of the expert reviews, and refused to accept that the company could put the matter to bed.
• The employer put AL on a Performance Improvement Plan (PIP) for performance concerns. AL later disputed some of the performance targets as unrealistic.
• Ultimately, he was dismissed on grounds including ‘breakdown of trust and confidence’ with his managers, failure to engage with the PIP, and inability to meet objectives.

Key legal findings

The key factual findings are as follows:

1. Protected disclosures: AL’s initial disclosures (when he first raised concerns about potential fraud) were protected, as he had a reasonable belief at that time, that wrongdoing might have occurred.
2. Later disclosures were not protected: Once the investigations, including external expert review had found no fraud, AL’s continued assertions were held not to be protected disclosures. It was no longer reasonable for him to maintain the belief of wrongdoing in the face of independent expert evidence.
3. Dismissal not automatically unfair for whistleblowing. The Tribunal found (as did the Appeal Tribunal) that whilst AL had made protected disclosures, the reason for dismissal was AL’s conduct (e.g. failure to accept findings, and a refusal to engage with the PIP) rather than the disclosures themselves. This was not the end of the matter, however.
4. Procedural unfairness: The employer’s dismissal process was found to be flawed. In particular, the employer failed to give AL advance notice of the “trust & confidence” allegation. As such, he was unable to fully prepare for a disciplinary hearing.  Some of the PIP targets were also considered to be objectively unrealistic.
5. Role of appeal: The Tribunal also grappled with the question of when an employer’s internal appeal can cure previous procedural failings.

Understanding whistleblower protection for employees

Practical tips for employers going forward

1. Have a clear whistleblowing policy that clearly explains what types of concerns are protected, how to report them, and how investigations will proceed.
2. Train managers and HR to respond to disclosures properly: listening, investigating and communicating.
3. When an employee raises concerns, appoint someone independent (where feasible) to investigate. Use external experts if needed.
4. Keep detailed records of the disclosure, steps taken, findings, meetings and communications.
5. Think carefully before starting a PIP, or giving performance targets following the making of protected disclosures. Ensure that any process followed is fair.
6. Be transparent about decisions, especially when serious actions like performance improvement plans or dismissal are involved. Inform the employee what is being alleged and allow them to respond fully.
7. Provide and follow internal appeal and grievance mechanisms. If errors have been made earlier in a process, try to correct them.
8. Review regularly whether a belief is still reasonable. If findings confirm no wrongdoing, communicating those findings clearly may (depending on the context) limit further liability.

Conclusion

The Argence-Lafon case shows whistleblowing protection for employees does not give blanket immunity: what is protected depends not only on what was said, but when, what belief was held, whether that belief was reasonable in light of evidence, and importantly how the employer responds.

Employees can’t simply say ‘it was because of whistleblowing’, but employers must ensure their processes, decisions, and communications are such that disclosures are taken seriously, rights are protected, and any performance or behavioural issues are handled fairly, separately, and with clarity.