Employees who blow the whistle on wrongdoing at work face significant personal and professional risks. The law provides protection, but only if certain legal tests are met. One key test is whether the disclosure is in the public interest, but what does that mean in practice?
What does that mean in practice? The law does not define "public interest", and the answer is not always straightforward. Recent case law has provided helpful guidance for employees and employers navigating this complex area.
What is whistleblowing?
Whistleblowing is when an employee or worker reports certain types of wrongdoing, typically within the workplace, either internally (to managers or senior leaders) or externally (to prescribed regulators such as the Financial Conduct Authority, the Health and Safety Executive, or others).
If the wrongdoing reported falls within certain legal categories, for example, a criminal offence, a breach of legal obligation, environmental damage, or a danger to health and safety, and the disclosure is made in the public interest, it may be treated as a protected disclosure under the Employment Rights Act 1996.
Employees making protected disclosures are legally protected from dismissal or detrimental treatment as a result of their whistleblowing.
Protected disclosures: the requirement for the disclosure to be made in the “public interest”
One of the key requirements for a disclosure to qualify for protection is that it is made in the public interest.
The legislation does not define this term. It was introduced to prevent purely personal contractual disputes (such as an individual dispute about holiday pay or bonuses) from qualifying as protected disclosures.
In recent years, courts have provided guidance on how this test should be applied in practice.
Chesterton Global Ltd v Nurmohamed – guidance on the public interest requirement
In 2017, the Court of Appeal (CoA) considered the public interest test in Chesterton and laid down four factors for consideration when determining whether a disclosure was made in the public interest:
- The numbers in the group whose interests the disclosure served;
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
- The nature of the alleged wrongdoing disclosed; and
- The identity of the alleged wrongdoer.
Whilst these factors do not form a strict set of criteria that every disclosure must meet to qualify for protection, they are helpful tools to determine whether the disclosure is protected.
- The numbers in the group whose interests the disclosure served
The larger the number of people whose interests are served by the disclosure, the more likely it is that the public interest requirement will be met.
For example, if a manager systematically breaches the contracts of all employees they manage, a disclosure about this could serve the interests of the entire affected group, making it more likely to satisfy the public interest test.
However, numbers are not decisive. The Employment Appeal Tribunal in Dobbie v Felton confirmed that a disclosure relating to even a single individual can still serve a section of the public and qualify for protection. This means that "public interest" is not purely a numbers game.
- The nature of the interests affected
This factor points to the fact that where the interest affected by a disclosure of wrongdoing is a significant or vital interest, it is more likely that disclosure of the relevant wrongdoing is in the public interest than if the interest affected covers the same number of people but is insignificant or trivial.
This factor also suggests that there is a distinction to be made between wrongdoing that directly and indirectly affects someone’s interests.
Therefore, as an example, disclosure of a manager’s wrongdoing where they decide to pay employees less than what they are contractually entitled to is more likely to be in the public interests than disclosure of the fact that a manager exceeded the allocated time for a meeting, resulting in employees leaving work slightly late.
- The nature of the alleged wrongdoing disclosed
The more serious and deliberate the wrongdoing, the more likely it is that a disclosure about it will be in the public interest.
A deliberate and systematic breach of legal obligations, or intentional fraud, will more readily satisfy the test than minor or inadvertent mistakes, even if the number of people affected is the same.
- The identity of the alleged wrongdoer
Finally, the Court of Appeal noted that the size, influence, or prominence of the alleged wrongdoer may be relevant.
A disclosure about a large organisation or an entity with significant reach (such as a national employer or public body) is more likely to engage the public interest than a disclosure about an isolated act by a small business.
However, this factor should be applied with caution the size of the organisation alone does not automatically mean that any disclosure about it will meet the public interest test.
Conclusion:
The Chesterton case provides helpful guidance, but there is no rigid formula for assessing whether a disclosure is in the public interest.
The four factors above are tools to assist tribunals in making an overall judgment based on the facts of each case. Ultimately, the question must be assessed case by case, taking into account all the relevant circumstances.
For both employers and employees, it is important to remember that even a disclosure about private contractual matters can sometimes meet the public interest test, especially if it exposes systemic failings or serious wrongdoing.
Where the public interest question is in doubt, obtaining legal advice can help clarify the risks and protections that may apply.
At Lamb Brooks LLP, we are here to help with any Whistleblowing queries you might have.
Please contact Legal Director Nour Belal at nour.belal@lambbrooks.com or you can call on 01256 844888.