Whistleblowing: Is the bar for the "public interest" test too low?

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman explains why the changes introduced in 2013 to the definition of a "protected disclosure" for whistleblowing purposes, meaning that the whistleblower must now have a reasonable belief that the disclosure is in the public interest, may turn out to be cosmetic only.

Can we describe someone who complains about her workstation being cramped and uncomfortable as a whistleblower? That is the question raised by the Employment Appeal Tribunal (EAT) decision in Morgan v Royal Mencap Society [2016] IRLR 428 EAT.

When we think of whistleblowers, we tend to think of courageous individuals who stand up to wrongdoing within their own organisation and draw the public's attention to it, putting at risk their own interests or career. Quite rightly the law seeks to give such individuals special protection. The Public Interest Disclosure Act 1998 created a right not to be subjected to detriment or dismissal for making a "protected disclosure". In such cases there is no period of qualifying service required and, crucially, no cap on the compensation that a tribunal may award. Even the most senior and well-paid executives are therefore given meaningful protection if they "blow the whistle" on their employer.

Welcome and important as the whistleblowing provisions now found in the Employment Rights Act 1996 are, there is a problem. The lack of a qualifying period and cap on compensation does create something of an incentive to invoke the Act at the slightest opportunity. For every case that raises serious concerns about an employer's behaviour, there are others that, on the face of it, do not seem to merit the extra protection.

The problem stems from Parkins v Sodexho Ltd [2002] IRLR 109 EAT, in which the EAT pointed out that a disclosure of information that tended to show some legal wrongdoing would meet the definition of a public interest disclosure - even if this wrongdoing consisted only of a breach of the individual employee's contract of employment. The definition of a public interest disclosure was therefore wide enough to encompass a purely private dispute about an employee's individual circumstances.

The Government clearly felt that this protection was too wide and the Enterprise and Regulatory Reform Act 2013 introduced a requirement that the whistleblower must have a reasonable belief that the disclosure is "in the public interest". We now have to work out what that actually means - and the early signs from the EAT are that this may be not very much.

In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed [2015] IRLR 614 EAT, the employee alleged that the profit and loss figures of a large estate agent were being manipulated to limit the amount of bonus that could be earned by a group of about 100 managers - including himself. The EAT accepted that the public interest requirement was met. The purpose of the new test was simply to overturn Sodexho, so that a disclosure that affected relations between only the employer and the individual concerned would not be protected. While the employee in this case was principally concerned with his own situation, there was evidence that he was also concerned about the position of his colleagues. This was enough to elevate the case beyond being merely a private grievance and into the realm of public interest. On this, rather controversial, analysis, the "public" can simply be a group of employees who are making the same allegation.

Then we come to Morgan. Here the employee complained that she was required to work in cramped conditions, which adversely affected her because she was recovering from a knee injury. She included a photograph of her workstation and the employment judge agreed that, if the photo was accurate, the area in which the employee was expected to work was "extremely cramped". However, the employment judge did not accept that the employee could reasonably believe that her complaint could have been made "in the public interest" and struck out that part of her claim. The EAT overturned this decision. The EAT accepted that, in principle, the employee could have held a reasonable belief that members of the public would be concerned about the working conditions of the employees of a major charity. Whether or not she in fact met the test was something that could be determined only after a full hearing.

From these two cases it would seem that the bar is being set very low for employees seeking to show that their complaint meets the public interest test. It could be argued that any member of the public would be concerned to hear that an employee was being unreasonably treated. Even the facts of Sodexho could be argued as meeting that test. Mr Parkins claimed that he was left unsupervised when using a buffing machine in the evening and had to call an off-site supervisor if he had any problems. He claimed that this raised health and safety issues. If he had had to make a public interest argument, he could simply have asserted that the avoidance of accidents was obviously a matter of public interest.

The public interest issue is due to be given a more definitive interpretation when Chesterton goes to the Court of Appeal later this year. If the Court endorses the EAT's view, it will be clear that the amendment introduced in 2013 was simply cosmetic. What is needed, however, is a test not just of how many people might be concerned or interested in a disclosure but also of the gravity of the disclosure itself. The public interest is not genuinely engaged by contractual disputes unless there is something particularly reprehensible about the conduct complained about. And while health and safety is, of course, a matter of great public concern, not every minor breach can really be said to engage the "common good". The Public Interest Disclosure Act was intended to provide an extraordinary level of protection for extraordinary circumstances. If every grievance can be expressed as a public interest disclosure, that will bring the whole concept of whistleblowing into disrepute. Genuine whistleblowers deserve better than that.

perspective@xperthr.co.uk