Case Study: Bibescu v Clare Jenner Ltd t/a Jenners [2026]
In Bibescu v Clare Jenner Ltd t/a Jenners, the Employment Appeal Tribunal (EAT) considered whether the Employment Tribunal (ET) had applied the correct legal tests when assessing an accountant’s whistleblowing detriment claim and her allegation that she had been automatically unfairly dismissed for making protected disclosures.
Facts
The Claimant, Ms Bibescu, was employed by the Respondent, an accountancy practice, from November 2018 until her dismissal in June 2020. She raised concerns about a subcontractor engaged by the firm to review her work, discovering that he had previously been disqualified as a director and was not a member of the relevant professional body.
Before the Claimant had made these disclosures, the Respondent had ongoing concerns about her performance at work. The Claimant was dismissed on 11 June 2020 for performance-related reasons. The Claimant lacked the qualifying service to bring an ordinary unfair dismissal claim. However, she brought claims of automatically unfair dismissal under the whistleblowing provisions, as well as a detriment claim under section 47B(1) of the Employment Rights Act 1996.
Employment Tribunal
The ET dismissed the Claimant’s automatic unfair dismissal claim. They found that, although she had made disclosures, they were not made in the public interest and did not meet the statutory factors required for a protected disclosure under section 43B ERA(1)(a) – (f). The Tribunal concluded that the principal reason for her dismissal was her poor performance rather than whistleblowing.
However, the ET did not fully determine the Claimant’s detriment claim. Its reasoning focused heavily on her motive for raising concerns rather than whether she genuinely believed the disclosures were in the public interest and whether that belief was reasonable.
Employment Appeal Tribunal
The EAT upheld the ET’s conclusion that the dismissal was primarily due to performance reasons but found that the ET had erred when considering the detriment claim. Specifically, the Tribunal had failed to sufficiently consider the Claimant’s state of mind and had wrongly substituted its own view for the statutory test of reasonable belief. As a result, the EAT remitted the detriment claim to a freshly constituted Tribunal for rehearing.
Why this is important
This case serves as an important reminder that employers must handle whistleblowing disclosures carefully, even where performance concerns exist and are well documented. The decision makes clear that their is the whistleblower’s reasonable belief, not their motives or personal interests, in determining whether a worker has made a i a disclosure. A worker may still qualify for whistleblower protection even if their motive for making a disclosure is self-serving.
To minimise risk, employers should:
- Ensure that performance concerns and reasoning for management decisions are documented early and clearly.
- Deal with disclosures in a structured and transparent way, ensuring the process is fully recorded.
- Not dismiss disclosures that may appear to be driven by a worker’s personal motives; instead, employers will be well-served by objectively considering if disclosures could be in the public interest and ensuring that any such disclosures are addressed in accordance with internal procedures.