Whistleblowing and Disciplinary Action: How Employers Can Reduce Legal Risk

When an employee raises concerns about wrongdoing, many employers assume that any later dismissal is off limits. That is not the case. Employees who make protected disclosures have significant legal protection, but whistleblowing does not give someone immunity from disciplinary action or dismissal where there is a separate and genuine reason for it. The challenge for employers is proving that distinction.

A recent Employment Appeal Tribunal decision has highlighted just how closely tribunals will examine the reasons behind a dismissal where whistleblowing is involved.

In Argence-Lafon v Ark Syndicate Management Ltd [2025] EAT 124, the employee raised concerns about what he believed to be a fraudulent insurance claim. The tribunal accepted that some of those concerns amounted to protected disclosures under whistleblowing legislation. However, it also found that the reason for his dismissal was not the disclosures themselves, but his subsequent conduct towards colleagues and management. The EAT agreed that employers can lawfully dismiss a whistleblower where the true reason for dismissal is unrelated misconduct or other legitimate concerns, rather than the protected disclosure itself.

The case has since been considered by the Court of Appeal, with further guidance expected on how employers and tribunals should approach situations where a disclosure and later conduct issues become closely linked.

The key risk for employers

The difficulty often arises when conduct concerns emerge after a whistleblowing complaint has been made.

An employer may genuinely believe that an employee’s behaviour has become disruptive, confrontational or damaging to working relationships. The employee, meanwhile, may argue that the conduct concerns would never have arisen had they not raised concerns in the first place.

In those circumstances, tribunals will look beyond the stated reason for dismissal. They will examine what was really driving the decision and whether the whistleblowing disclosure remained an operative factor. Simply labelling a dismissal as a conduct matter will not be enough if the evidence suggests that frustration with the disclosure itself influenced the outcome.

Getting the process right

The legal protection for whistleblowers is substantial. Employees dismissed because they have made a protected disclosure can bring an automatic unfair dismissal claim and do not need two years’ service to do so. Workers are also protected from suffering detriment because they have raised concerns in the public interest.

For employers, that makes process particularly important.

If concerns arise about the conduct, performance or capability of an employee who has raised a protected disclosure, those issues should be managed in the same way they would be for any other member of staff. The difficulty comes where there is a lack of evidence showing that this happened.

Contemporaneous records can be crucial. Managers should document concerns as they arise rather than trying to justify decisions retrospectively. Disciplinary investigations should focus on identifiable conduct issues and avoid criticism of the fact that concerns were raised in the first place.

Where possible, employers should also ensure that decision-makers approach the process objectively and understand the protections that whistleblowers benefit from under the Employment Rights Act 1996. Whistleblowing concerns should be investigated separately from any disciplinary process, with clear reasoning recorded throughout. Guidance from both Acas and the Government stresses the importance of having clear reporting procedures and responding consistently to disclosures.

Prevention is better than cure

Many whistleblowing disputes arise because employees feel their concerns have not been taken seriously.

Having a clear whistleblowing policy is one of the best ways to reduce risk. Employees should understand who concerns can be reported to, how they will be investigated and how confidentiality will be handled where possible. Employers who encourage concerns to be raised internally are often in a stronger position to address issues early before relationships break down.

Managers should also receive training so they can recognise when a complaint could amount to a protected disclosure. What begins as an ordinary workplace concern can quickly develop into a whistleblowing issue if it relates to matters such as fraud, legal breaches, health and safety risks or the concealment of wrongdoing.

What this means for you

The Argence-Lafon decision is a useful reminder that whistleblowers can still be subject to disciplinary action and, in appropriate cases, dismissal. However, employers should expect those decisions to face greater scrutiny where a protected disclosure has been made.

Before taking action, ask whether the evidence clearly supports the stated reason for dismissal, whether the concern would have been handled in the same way had no disclosure been made, and whether there is a clear audit trail showing how the decision was reached.

Where employers can demonstrate that a dismissal was genuinely based on conduct, performance or another legitimate reason, they are far better placed to defend any subsequent claim. Where the paperwork is unclear or the disclosure and dismissal become blurred, the risk of costly litigation increases significantly.

If you’re dealing with a whistleblowing complaint or managing related disciplinary or performance concerns, seeking advice early can help ensure matters are handled fairly and reduce the risk of costly disputes. For expert guidance, contact Farleys’ Employment Law team on 01254 606008, contact us by email, or use the online chat below.