Whistleblowing in the public interest – Court of Appeal test case

Workplace whistleblowers only enjoy the protection of the law if the disclosures they make are in the public interest – but what exactly does that mean? The Court of Appeal has analysed that issue for the first time in a vital test case.

The case concerned an estate agent who feared that his earnings would be gravely depleted by a change in his employer’s bonus structure, whereby payments would be linked to profits rather than gross fee income. He was dismissed after reporting his suspicions that the agency’s internal accounts were being deliberately manipulated in such a way as to minimise profits, and thus bonuses.

The employer accepted that he had been unfairly dismissed in the ordinary sense. However, an Employment Tribunal (ET) also upheld his claim that he had been penalised for whistleblowing and that his dismissal was thus automatically unfair within the meaning of the Employment Rights Act 1996. That decision was subsequently upheld by the Employment Appeal Tribunal.

In challenging the latter decision, the employer argued that the relevant disclosures had been made for the man’s own benefit and were thus not in the public interest. However, his lawyers pointed out that about 100 of his colleagues were in the same boat as him and that his disclosures had the potential to benefit them as well. The employer responded that a mere multiplicity of workers sharing the same interest was not enough to meet the public interest requirement.

In ruling on the case, the Court noted that the particular issue in the appeal was whether a disclosure which is in the private interest of the worker making it becomes in the public interest simply because it serves the private interests of other workers as well.

The Court rejected arguments put forward by the charity Public Concern at Work – who were permitted to appear as an intervener in the case – that any disclosure is in the public interest if it is in the interests of anyone else besides the worker who makes it. Such an approach would be mechanistic and require the making of artificial distinctions.

However, the Court noted that the public interest test would clearly be met by the example of a doctor disclosing pay irregularities across the entire NHS workforce of over a million employees. Where a disclosure benefited the person who made it, there could nevertheless be features of the case that made it reasonable to view it as being in the public interest.

The correct approach was therefore fact sensitive and depended on the particular circumstances of each case. The Court acknowledged that such a test did not create a bright line but depended on a nuanced approach. However, applying that principle to the facts of the case, the Court found that the disclosures made were protected and dismissed the employer’s appeal. It noted in particular that the employer was a substantial and prominent business and that the disclosures concerned alleged deliberate misstatements in its accounts to the tune of up to £3 million.