Whistleblowing cases can pose ongoing challenges long after an internal investigation has drawn a line under the original allegations. HR professionals are often left managing repeated claims, conduct issues, and potential dismissals against a background of heightened legal and reputational risk.
The recent case of Argence-Lafon v Ark Syndicate Management Ltd illustrates these challenges and offers practical lessons for HR.
HR checklist
Reassess protection: Revisit whether ongoing allegations remain “protected” once a full investigation finds no wrongdoing.
Keep tests distinct: Separate whistleblowing detriment and dismissal tests in decision-making and drafting.
Differentiate conduct: Record the specific conduct driving action, distinct from the disclosure itself.
Make appeals meaningful: Design appeals to cure earlier procedural defects, not just confirm.
Stress-test rationale: Test any PIP or dismissal decision for independence from disclosures.
Document everything: Maintain an audit trail showing decision-makers’ reasoning and causal analysis.
Case status and currency: Argence-Lafon v Ark Syndicate
Facts: Mr Olivier Argence-Lafon, a senior underwriter, repeatedly raised fraud concerns. Ark investigated thoroughly and found no fraud. Despite this, he continued making allegations and resisted management interventions, including a performance improvement plan (PIP). He was ultimately dismissed.
Employment Tribunal (2022): Found some disclosures were protected but held later repeated allegations were not, as it was no longer reasonable to persist once fraud had been ruled out. The ET considered the dismissal unfair for procedural reasons, focusing on defects in the first-stage disciplinary process.
EAT (2025): Upheld the principle that protection depends on reasonableness at the time. Repeated allegations after a clear investigation outcome were not protected. The EAT also accepted that Ark’s actions were driven by Mr Argence-Lafon’s conduct and refusal to engage, not by whistleblowing itself. However, the EAT remitted the case on unfair dismissal because the ET had failed to assess the appeal stage properly; tribunals must consider the entire disciplinary process, including whether an appeal cured earlier flaws.
Practical lesson: Once a full investigation has closed allegations off, HR can justifiably treat repeated claims as unreasonable and outside whistleblowing protection — but only if decisions and processes are carefully documented, distinct from disclosures, and the appeal is robust.
Five key principles for HR
1. When a disclosure stops being protected
A disclosure requires a reasonable belief (s43B ERA 1996).
That belief can become unreasonable once an investigation has been carried out and communicated.
In Argence-Lafon, the tribunal accepted that later allegations no longer attracted protection once fraud was ruled out.
HR should document why further allegations are not reasonably held.
2. Detriment versus dismissal – keep tests separate
Detriment (s47B ERA): Was treatment materially influenced by the disclosure?
Dismissal (s103A ERA): Was the disclosure the sole or principal reason for dismissal?
The Argence-Lafon appeal reinforced the importance of keeping these tests distinct; conflation risks appeal and remittal.
3. Distinguishing conduct from the protected act
Employers may act on conduct (e.g., refusal to engage with a PIP, repeated baseless accusations) if separable from the disclosure.
In Argence-Lafon, the EAT upheld the finding that Ark’s dismissal decision was based on conduct, not the disclosures.
4. The decision-maker’s mind – and the Jhuti exception
Normally, tribunals look at the decision-maker’s actual reasons.
Under Jhuti, a hidden retaliatory motive can be attributed to the employer.
HR must ensure independence, test sources, and document why retaliatory motives were rejected.
5. The value of a meaningful appeal
The EAT in Argence-Lafon remitted the case because the ET had not properly factored in the appeal stage.
A substantive appeal can “cure” earlier procedural defects, but only if it genuinely revisits evidence, reasons, and proportionality.
Practical steps for HR
Reconfirm scope and closure
Write to the whistleblower setting out investigation scope, methodology, and outcome.
Make clear that repeating unfounded allegations may be treated as conduct, not protected activity.
Manage performance and conduct distinctly
Use standard PIPs with evidence-based objectives.
Show in writing that a PIP was justified independently of disclosures.
Document refusal to engage or persistence with baseless allegations as conduct.
Stress-test dismissal rationale
Ensure the principal reason is conduct or capability, not whistleblowing.
Consider alternatives (warnings, mediation, redeployment) and record why they are insufficient.
Explicitly record how decisions were reached to rebut automatic unfair dismissal claims.
Make appeals count
• Appoint an independent appeal manager with no prior involvement.
• Permit new evidence and reconsider causation.
• Correct earlier missteps so the appeal genuinely strengthens fairness.
Documentation to Prepare and Retain
Reasonableness file: Investigation report, closure letter, and communications evidencing why ongoing allegations were not reasonably held.
Causation analysis: An internal note separating detriment vs dismissal reasoning.
Decision-maker’s record: Evidence considered, retaliatory motives rejected, and why conduct was separable.
Appeal pack: Grounds of appeal, new evidence, appeal officer’s reasoning, and any cures applied.
Risk flags for HR
Treating repeated allegations as protected without reassessing reasonableness after a clear, fair investigation.
Conflating detriment and dismissal tests in outcome letters or tribunal pleadings.
Running a PIP that looks retaliatory in timing or tone.
Ignoring the Jhuti risk by rubber-stamping another manager’s recommendation.
Designing appeals as mere confirmations rather than genuine reviews.
Final thoughts
The Argence-Lafon case confirms that whistleblowing protection is not indefinite: once a full and fair investigation closes an issue, it may become unreasonable to persist in the same allegations. But it also highlights that HR must carefully separate conduct from disclosure, maintain robust documentation, and make the appeal process genuinely meaningful.
Done well, this not only reduces legal risk but also demonstrates organisational commitment to fairness and integrity.
This article was created with insights from Lex HR - your always-on HR legal assistant. Lex HR helps HR professionals navigate complex employment law with confidence, providing real-time, reliable advice tailored to your needs. Try it free today and see how much easier compliance can be.
