Case law: Employees must show disclosure is in the 'public interest' to be protected under whistleblowing law

Employers faced with a worker claiming to have made a 'protected disclosure', and therefore that they are protected under whistleblowing law, should consider whether the disclosure is in the public interest. If it isn't, the worker is not protected.

Workers are protected against detriment or dismissal under UK whistleblowing laws if they make a 'protected disclosure'. However, since 2013 the protection only applies if the worker reasonably believes that the disclosure was in the public interest.

Historically, a disclosure relating to the worker's own terms of employment have not been treated as in the public interest. However, in a recent case, a director of a major estate agent told his HR Director that he believed the company had deliberately misstated £2-3m of costs and liabilities in its accounts. The consequence was that the director, and around 100 other senior employees, received lower bonuses, and the company's profits were not as depleted as they would otherwise have been.

The Employment Appeal Tribunal (EAT) said the 'public interest' requirement was to stop a worker from using whistleblowing law where the detriment is of a personal nature, with no wider public interest implications. It found that the director reasonably believed his disclosure was not only in his interests, but also the interests of his senior colleagues - and this was a sufficiently large group for his disclosure to be treated as in the public interest. It was irrelevant that his primary motive for the disclosure was his own bonus, because he also had his colleagues in mind when he made his disclosure. He had therefore made a protected disclosure.

The Court of Appeal agreed, and made the following points:

  • There can be more than one view of whether a disclosure is in the public interest.
  • The test is whether, objectively, the worker reasonably believed (subjectively) the disclosure is in the public interest, even if the worker's belief is wrong. The reasons for the worker's belief are not 'of the essence'.
  • The worker's main motive for the disclosure need not be the public interest.

The Court did not specify a set number of people who would need to be affected before a disclosure would be in the public interest. Instead, it stressed that each case would be fact-specific. It said that in a case involving a breach of a worker's contract, the correct test was to consider whether features of the case made it reasonable to treat the disclosure as being in the public interest, and not just the interest of the worker.

However, it said that the following factors would often need to be taken into account:

  • the number of people whose interests are affected (although the mere fact a disclosure affects a large number of workers is unlikely, in itself, to be enough);
  • the nature of the interests, and the extent they are affected - a disclosure significantly affecting an important interest is more likely to be in the public interest than a disclosure affecting a lesser interest (eg a marginal or indirect one);
  • the nature of the matter disclosed - disclosing deliberate wrongdoing is more likely to be in the public interest than disclosing unintentional wrongdoing;
  • who the wrongdoer is - the larger the organisation, taking into account employees, customers or suppliers, the more likely disclosure is in the public interest.

Operative date

  • Now

Recommendation

  • Employers faced with a worker alleging they have made a 'protected disclosure' under whistleblowing law should consider whether the employee reasonably believes the disclosure is in the public interest. If they don't, they are not protected from detriment or dismissal under whistleblowing law

Case ref: Chesterton Global Limited & Anor v Nurmohamed [2017] EWCA Civ 979

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