How public does a Public Interest Disclosure need to be?

David Reid
Director
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Generally speaking, UK whistleblowing laws have sought to enable workers to raise concerns about the acts, omissions and dealings of their employers, without fear of repercussion.

Since their inception under the Public Interest Disclosure Act 1998, UK whistleblowing laws have protected those who have ‘blown the whistle’ (disclosing certain categories of information to prescribed categories of recipient), and who have then been dismissed, or have suffered a detriment (such as being disciplined, or passed over for promotion) as a result.

For whistleblowing protections to apply, the information disclosed by the worker needs to be of a particular nature (most commonly, but not limited to, suggesting that a criminal offence has taken place or is likely to take place, or that there has been, or is likely to be a breach of legal obligations, or that there is danger to health and safety or an individual, or to the environment). The worker also needs to have held a reasonable belief as to the nature of the failing or unlawful action disclosed.

Perhaps ironically, given the name of the legislation that introduced the protection, it was the case that, until recently, there was no requirement for workers to show that disclosures had been made in the public interest. This changed in late June 2013, when the government amended the law to introduce a requirement for all workers to demonstrate that they reasonably believed that their disclosure has been made in the public interest.

This change to the law had been made to close what some considered to be a loophole, which had previously allowed employees to enjoy the protection of whistleblowing legislation when claiming that their employer was in breach of its legal obligations, merely by breaching the employee’s own contract of employment. The government considered this to be contrary to the original purposes of the legislation.

This relatively new requirement for disclosures to be in the public interest was examined recently for the first time by the Employment Appeal Tribunal (‘EAT’). The case centred on a disclosure, made by a director of an estate agency firm, that his employer was manipulating its financial reporting.

The employee had argued that his disclosure had been made in the ‘public interest’, despite acknowledging that his motivation for blowing the whistle had been the effect that his employers’ alleged practice had had on his personal earnings entitlement, and the earnings entitlement of other employees.

Subsequent to reporting his concerns to his employer, the claimant was dismissed. He brought claims for unfair dismissal and whistleblowing at the employment tribunal.

The tribunal found that the nature of the employee’s disclosure had met the test of a legal obligation having been breached. The tribunal then had to consider whether the employee reasonably believed that his disclosure was made ‘in the public interest’.

The tribunal accepted that the employee reasonably believed that the disclosure was in the interests of 100 managers of the employer, and therefore held that the public interest test had been satisfied. The employer appealed to the EAT on this point.

The EAT commented that the introduction of the ‘public interest’ requirement was to avoid the situation where workers sought to rely upon whistleblowing protections purely in relation to acts or omissions affecting them personally only. In this case, whilst the employee was perhaps most concerned about his own position, in light of the employer’s alleged breach of its legal obligations, the EAT was satisfied, on the evidence, that the claimant had also been concerned about the implications for his 100-strong group of colleagues. As such, the EAT concluded that the public interest test had indeed been met and, in fact, commented that it envisaged situations where reasonable belief, on the part of the whistleblower, of impact upon a relatively small group of others may be sufficient to constitute being in the interests of ‘the public’. The EAT upheld the findings of the tribunal in favour of the employee, and the employer’s appeal was dismissed.

View our expert comments about Public Disclosure here.

You can read the case here:

http://www.bailii.org/uk/cases/UKEAT/2015/0335_14_0804.html

Topics: Whistleblowers