Whistleblowing - what is a disclosure made in the public interest?
The law on whistleblowing - the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998) - protects a worker against “detriment or dismissal” if they have made a qualifying disclosure.
The definition of ‘qualifying disclosure’ is any disclosure of information which shows one or more of the following:
a criminal offence has been, is being, or is likely to be committed;
a person has failed, is failing or is likely to fail to comply with a legal obligation;
a miscarriage of justice has occurred, is occurring or is likely to occur;
the health and safety of any individual has been, is being, or is likely to be endangered;
the environment has been, is being or is likely to be damaged; or
information tending to show any of the above has been, is being, or is likely to be concealed.
Additionally, the worker must have a reasonable belief that the disclosure is made in the public interest
There is a two-stage test that tribunals must apply when considering the public interest defence – firstly, whether the claimant genuinely believed, at the time of making the disclosure, that it was in the public interest to do so, and secondly, that said belief was reasonable. This test was set out in the case of Chesterton Global Ltd v Nurmohamed, which was handed down by the Court of Appeal.
But how far can the definition of ‘in the public interest’ be stretched? Can a disclosure be in the public interest if it relates to behaviour towards a specific individual?
The recent Employment Appeal Tribunal (EAT) case of Dobbie v. Paula Felton t/a Feltons Solicitors looked at this question.
The claimant brought a complaint to the employment tribunal that he had been subject to detriments because he had made protected disclosures. He had been working for the respondent as a consultant. He was substantially involved in work for a particular client, one of the most important clients of the firm. He said that he had made a protected disclosure that he believed the particular client was being overcharged by the respondent, and that as a result, his consultancy agreement had been terminated.
The employment tribunal concluded that the claimant did not have a reasonable belief that the disclosures were made in the public interest. Although it agreed that he did believe the respondent had overcharged the client and that this was a breach of legal obligation, and that these beliefs were reasonable for him to hold (although it did not say that the respondent had actually overcharged the client, merely that the claimant believed it to be so) the tribunal did not decide that he had a reasonable belief that the disclosure was in the public interests, since it concerned only one individual client of one particular firm.
The claimant appealed to the Employment Appeal Tribunal, on the grounds that the employment tribunal had not applied the public interest test correctly.
The Employment Appeal Tribunal said that the employment tribunal had made a mistake when it looked at whether the claimant reasonably believed that his disclosure was in the public interest. It sent the matter back to a new employment tribunal to take another look at whether the claimant had a reasonable belief about the public interest status of his disclosures.
The definition of ‘public interest’
There is no specific definition of ‘public interest’ in the legislation. It is generally left to individual tribunals to interpret and rule on the matter in hand.
In Section 28 of its judgment, the Employment Appeal Tribunal added a number of further general observations on the application of the public interest test:
a matter that is of “public interest” is not necessarily the same as one that interests the public.
while “the public” will generally be interested in disclosures that are made in the “public interest”, that does not necessarily follow. There may be subjects that most people would rather not know about, that are, nonetheless, matters of public interest
a disclosure could be made in the public interest although the public will never know that the disclosure was made.
a disclosure could be made in the public interest even if it is about a specific incident without any likelihood of repetition.
for the disclosure to be a qualifying disclosure it must, in the reasonable belief of the employee making the disclosure, show one or more of the types of “wrongdoing” set out in the Employment Rights Act.
a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is “made” in the public interest.
What should employers bear in mind?
Employers need to be careful when looking at disclosures, even if such a disclosure does not look as if it is, on face value, actual whistleblowing or even factually true.
It might appear that a disclosure is motivated by personal reasons but on a second look, it may prove to be in the public interest. Employers in the public sector, or those who are regulated by statute may find this more common.
A key part of any employer’s policies and procedures should be a whistleblowing policy. This should establish the process by which an employee, worker or anyone else connected to the employer, (e.g. a consultant, as was the case in the above matter) should make a whistleblowing disclosure. The workforce should be made aware of this through communication channels.
rradar employment solicitor Amy Pedersen-Young says:
“This case highlights to us that “whistleblowing”, otherwise known as a protected disclosure, may not always be obvious to businesses, or organisations. Just because the wider public may not be affected by the disclosure doesn’t mean it wouldn’t qualify under the law as “in the public interest”. It is therefore vital that when any complaint is made by an employee, careful consideration is made as to whether it would qualify as a protected disclosure and that any staff who may receive such complaints, such as supervisors or managers, are well versed in any “whistleblowing” procedure. I would always recommend that a business, or organisation, has a “whistleblowing” policy in place so that all staff know where they stand in terms of making a report, but also how it should be handled.”
Amy Pedersen-Young, Solicitor at rradar