UK Employment - Whistleblowing – what disclosures are protected and when will you be liable?

Introduction

Hello and welcome to our latest employment video. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London.

Last year we reported on the case of Chesterton against Nurmohamed on the public interest test in whistleblowing cases. The long-awaited appeal has now been heard by the Court of Appeal and its decision has been published. The outcome of this case is the subject of today’s video.

Background

By way of a reminder, in order for a worker to be protected against dismissal or detriment under the whistleblowing legislation, the worker must have made a disclosure of wrongdoing which, in the reasonable belief of the worker, “is made in the public interest”. This element of the definition of a qualifying disclosure was introduced by legislation in 2013.

The “public interest” test

In the Chesterton case, the employee concerned complained about the manipulation of company accounts, one of the consequences of which was that a reduced commission payment was paid to him and approximately 100 other senior managers.

Whilst this disclosure was clearly in the employee’s own private interest, the court had to decide if it also passed the “public interest” test.

The employment tribunal and the Employment Appeal Tribunal held that the “public interest” requirement could be met if the information disclosed had an impact on a relatively small section of the public – in this case, approximately 100 managers all employed by the same company. The employer then appealed to the Court of Appeal which considered the public interest test for the first time.

The Court of Appeal’s decision

The Court of Appeal agreed that the disclosure could fall within the “public interest” test, stating that the mere fact that something is in the worker’s private interest doesn’t prevent it from being in the public interest – this will depend on the nature of the interest, rather than simply on the number of people sharing that interest.

The Court held that there are no “absolute rules” for deciding when a disclosure was in the public interest, but the courts should consider all the circumstances, including the following relevant factors:

• Firstly, they should consider the number of those affected - the larger the number affected, the more likely the disclosure will be in the public interest.
• Next, the nature of the interest will be relevant – so that if the information disclosed has an impact on, say, the welfare of patients in the health sector, that’s more likely to meet the public interest test than disclosure of a more trivial wrongdoing.
• The nature of the wrongdoing will also be relevant, so that disclosure of a deliberate wrongdoing is more likely to be in the public interest than one which is unintentional.
• And, finally, the identity of the wrongdoer will be relevant, so that the larger or more prominent the wrongdoer, the more likely the disclosure will be in the public interest.

The Court wouldn’t rule out the possibility that disclosure of a breach of a worker’s contract may be in the public interest, if a sufficiently large number of others in the same workplace were affected.

However, the Court said that tribunals should be cautious about concluding that disclosures made in the context of private workplace disputes are in the public interest – and should only do so after carefully balancing all the different factors.

Implications for employers

It’s clear from this decision that each case will very much turn on its facts.

However, employers need to be aware that a disclosure which, at first sight, appears to be one of private interest to the employee only, may nevertheless pass the public interest test, and so fall within the protection of the whistleblowing legislation when all the circumstances are considered.

If the employee is then dismissed, or subjected to any other detriment, because he has made the disclosure, a successful claim may follow.

Conclusion

This video is intended to provide you with an update on the definition of a qualifying disclosure in the whistleblowing legislation. We shall of course keep you updated as to further developments, but if you would like any more information, or have any questions on any aspects of today’s topic, then please don’t hesitate to contact us.