Whistleblowing and the public interest

Since 2013 whistleblowers have not been entitled to protection unless they believe they are acting in the public interest. Three years on, we look at how this new requirement is being interpreted.

The history of the public interest test

When the original whistleblowing legislation was introduced in 1998 there was no express requirement that the whistleblower needed to act in the public interest in order to qualify for protection. That may have been because of an assumption that the other requirements imposed on whistleblowers ensured that in practice they would not be protected unless they were acting in the public interest.

These requirements included a defined list of relevant failures which workers could blow the whistle about. This was combined with two requirements that addressed the motivation of the worker making the disclosure. Not only did the worker have to reasonably believe that the disclosure tended to show a relevant failure but the disclosure had to be made “in good faith”.

Relevant failures include not only health and safety breaches, environment damage and criminal offences, but also a failure to comply with “any legal obligation” to which the employer is subject. This last kind of relevant failure has been interpreted to include the legal obligations owed to an individual whistleblower under a contract of employment.

The possibility of workers being able to using the whistleblowing legislation to seek redress for individual employment grievances led the Government to amend the legislation with effect from June 2013. From that point onwards, the requirement to make the disclosure in good faith was replaced with a requirement that the worker must “reasonably believe” that the disclosure was being made “in the public interest”.

What is in the public interest?

The expression “in the public interest” was not defined in the amending legislation. It is fair to assume that if the disclosure solely concerns the individual worker and there is no wider benefit, it will not qualify for protection. What is less clear is whether there is any minimum number of other people who could benefit from the disclosure before it can be regarded as being in the public interest.

In Chersterton v Nurmohamed (2015) the Employment Appeal Tribunal said that a group of around 100 employees, who were also potentially affected by the breach of contract about which Mr Nurmohamed was complaining, could constitute a “section of the public” for these purposes. In the slightly later decision of Underwood v Wincanton the EAT were prepared to accept that a disclosure which concerned a much smaller group of employees could be in the public interest.

However it is probably a mistake to adopt a purely arithmetical approach to defining the public interest. Often breaches of an employer’s obligation to an individual employee can overlap with matters of wider public interest. For example Mr Nurmohamed’s disclosures called into question whether the accounts of a well-known firm of estate agents had been correctly prepared. The EAT appears to have accepted that this was capable of being a public interest issue, even though the company was not listed on the Stock Exchange. Similarly in Underwood, as well as issues regarding the working conditions of a handful of HGV drivers, there were issues about road safety which were seen as matters of wider public interest.

Most recently, in Morgan v Royal MENCAP Society (2016), the EAT has said that a tribunal had been wrong to strike out a case about working conditions in an office occupied solely by the claimant. The EAT seems to have accepted that it was at least worth hearing evidence about why the claimant believed that complaining about her own working conditions had been in the wider public interest, considering the public profile of the charity that was employing her. It may be that the Court of Appeal will have more to say about this when it hears the employer’s appeal in Chersterton later this year. In the meantime it seems that employment tribunals will be loath to shut out a case if the whistleblower can at least make a case that the disclosure was not just about his or her individual circumstances.

How is “reasonable belief” to be assessed?

It seems clear that the test for reasonable belief will be a subjective one, in the sense that the employment tribunal must first establish whether the claimant in fact believed that the disclosure was made in the public interest. Whether the employment tribunal hearing the case shares that belief is not relevant.

Having established what the claimant in fact believed, it will then have to assess whether that belief was reasonable. This is the objective element of the test, though we know from other areas of employment law that a range of reasonable opinion is at least theoretically possible. Clearly the more serious the failing, the more likely it is that it will be reasonable to regard disclosing information about it as being in the public interest, even if the number of people directly affected is relatively small.

Conclusions

Judging by recent case law, the new public interest test has done little to narrow the scope of protection for whistleblowers. There seems a growing recognition that whistleblowers should be listened to even if they are acting from mixed motives. Indeed it could be argued that replacing the good faith requirement with a public interest test has resulted in widening rather than narrowing the scope of protection.