The whistleblowing regime was amended in 2013, the most notable change being the introduction of a public interest test for a disclosure to qualify for protection. There have been a number of prominent whistleblowing cases since the 2013 changes, including on the public interest test. In this Insight I will look at the most interesting of these recent cases, and consider the extent to which the introduction of the public interest test has limited the scope of complaints which qualify for whistle-blower protection.

Before the introduction of the public interest test, claimants were able to bring a whistleblowing claim in the employment tribunal relying on a breach of their own contract of employment, where that breach was of an entirely individual and personal nature and there were no wider ramifications. The changes in 2013 were intended (in part or in whole) to reverse that position, so that disclosures would only qualify for protection where the claimant had a “reasonable belief” that the disclosure was “made in the public interest”.

The first case to consider the public interest test was Chesterton Global Ltd v Nurmohamed. The Claimant in this case had made disclosures regarding the falsification of accounts which affected his earnings, and the earnings of 100 senior managers. It was held at first instance, and on appeal, that the disclosures were made in the reasonable belief that they were in the interest of 100 senior managers, and that that was a sufficient group of the public to amount to a matter in the public interest. Furthermore, the EAT confirmed that the question was whether or not the individual had a reasonable belief that the disclosure was made in the public interest, not whether it objectively was in the public interest. This case is being appealed to the Court of Appeal.

The second case to consider the public interest test was Underwood v Wincanton plc, which set the bar even lower. In this case the Claimant and three colleagues complained about the distribution of overtime by their employer, an issue which affected a group of employees at the relevant depot. The EAT, following Chesterton, accepted that this was in principle capable of satisfying the public interest test.

More recently, in Morgan v Royal Mencap Society the EAT held that a complaint about an individual’s cramped working conditions could be a protected disclosure, and should not have been struck out by an Employment Tribunal. One of Morgan’s arguments was that she believed her disclosures were in the public interest because Mencap is a charity, and the public should know how charities treat their employees. Depending on how case law on the public interest test develops over time, this may become a common line of argument.

The implication of the above cases is that in practice it may be very difficult for an employer to spot what may amount to potential whistleblowing. How many people does a disclosure have to relate to in order to qualify for protection? What if you don’t believe that the individual genuinely considers their disclosure to be in the public interest? These are grey areas, and until there is greater clarity on the precise requirements of the public interest test the prudent employer would be wise to bear in mind that seemingly personal gripes may amount to whistleblowing.

Posted on 13/05/2016 in Legal Updates

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