Whistleblowing - You can still dismiss, but tread carefully

A dismissal is not automatically unfair for whistleblowing where the genuine reason is the employee's subsequent unreasonable conduct rather than the protected disclosure itself. The Employment Appeal Tribunal reached that conclusion in Argence-Lafon v Ark Syndicate Management Ltd [2025] EAT 124, and the Court of Appeal heard the appeal on 12th June 2026.

Mr Argence-Lafon, a senior underwriter, raised concerns about a $50 million insurance fraud claim following a well blowout. The Employment Tribunal found those concerns were protected disclosures under section 103A of the Employment Rights Act 1996. Neither tribunal found that the protected disclosures caused or contributed to the dismissal. The EAT held that the dismissal was driven by Mr Argence-Lafon's subsequent unreasonable conduct toward colleagues and management, and dismissed the automatic unfair dismissal claim on that basis.

The Court of Appeal is asked to determine whether the EAT applied the correct legal test when severing the causal connection between a protected disclosure and a later dismissal. The question is live and contested: where an employee who has blown the whistle is subsequently dismissed for conduct that emerged in the course of, or as a reaction to, the disclosure process, tribunals must consider carefully whether the stated reason for dismissal is genuine or whether the disclosure remains an operative cause.

What this means for you

For employers, the case reinforces the importance of clear and contemporaneous documentation when managing an employee who has made a protected disclosure. A dismissal decision taken in close proximity to a disclosure will attract greater scrutiny. Employers should record performance or conduct concerns in real time after a disclosure, ensure that the decision-making chain is independent of anyone aware of the disclosures, and confirm in writing that the reason for dismissal has been examined free from any connection to the disclosure.

If you have and questions about the points raised here, please get in touch and see how our employment team can help on 01635 896 336 or email employment@fentonelliott.co.uk

Disclaimer: The content of this website article is for general awareness and insight. This is not legal or professional advice and readers should not act upon the information provided, they should seek professional advice based on their own particular circumstances. The law may have changed since this article was published.