Bibescu v Clare Jenner Limited: EAT clarifies the public interest test in whistleblowing claims

In Bibescu v Clare Jenner Limited t/a Jenner's [2026] EAT 30, the Employment Appeal Tribunal (EAT) has provided a timely reminder of the proper approach to section 43B of the Employment Rights Act 1996 (ERA), particularly the requirement that a worker hold a genuine, reasonable belief that a disclosure was made in the public interest.

Elena Bibescu was employed as an accountant by Clare Jenner Limited from November 2018 until her dismissal in June 2020. Lacking the qualifying service for an ordinary unfair dismissal claim, she pursued complaints of automatically unfair dismissal under section 103A ERA (whistleblowing), detriment under section 47B ERA, and automatically unfair dismissal on health and safety grounds under section 100(1)(d) ERA.

The central disclosures concerned a subcontractor, Richard Grimes, who was peer-reviewing the claimant's work. Following her own enquiries at Companies House, the claimant discovered that Grimes appeared as a director of a company associated with his wife despite holding a disqualification, and that he was not a member of the ACCA. She raised these matters with her employer at a meeting on 8 June 2020. Three days later, she was dismissed — the respondent citing her performance and inability to work with Grimes.

The tribunal's errors

The Employment Tribunal dismissed the section 103A claim, finding that the reason for dismissal was the claimant's performance rather than any protected disclosure. The EAT upheld that finding as a rational conclusion, plainly open to the tribunal on the evidence, and rejected the perversity grounds accordingly.

The more significant findings concerned the section 47B complaint, which the tribunal had failed to determine in the operative part of its judgement — itself an error noted by the EAT. In analysing whether the claimant had made qualifying disclosures under section 43B, the tribunal's reasons focused almost entirely on her motive and on whether the relevant events had objectively occurred. It did not make the necessary findings about the claimant's subjective state of mind.

The correct approach restated

Following Chesterton Global Limited v Nurmohamed [2018] ICR 731, Parsons v Airplus International Limited, and Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, Lord Fairley P confirmed the proper analytical framework. The tribunal must first determine whether the worker genuinely believed, at the time of disclosure, that it was made in the public interest — a question focused squarely on subjective belief, not motive. Even a disclosure driven entirely by personal grievance may still attract protection if the worker genuinely considered the public interest. Only if that threshold is met does the tribunal proceed to assess whether such a belief was objectively reasonable, assessed from the perspective of someone in the claimant's particular position.

The tribunal's conflation of motive with belief, and its substitution of its own view of reasonableness for that of the claimant, amounted to material errors of law. The same flaw infected its treatment of the section 43B(1)(a) to (f) factors: the tribunal assessed whether those matters had in fact been established, rather than considering what the claimant believed.

Remittal

Given that more than three years had elapsed since the original hearing, and that the tribunal's expressed views risked the appearance of unfairness, the EAT remitted the section 47B complaint to a differently constituted tribunal.

The EAT also observed that tribunal reasons must reflect the conclusions of the whole panel. Where only the legal member's views are recorded, this creates an impression — however unwarranted — that lay members' contributions have been disregarded.

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