Whistleblowing and the “public interest” – it all rests on the facts

It is illegal for an employer to dismiss an employee, or to impose a disadvantage on them, for making a disclosure about unlawful activity. However, this protection only extends to “qualifying disclosures” including criminal offences, breaches of legal obligation, miscarriages of justice, violations of health and safety, and damage to the environment.

Furthermore, as the law stands, to make a whistleblowing claim, employees must do so with the belief that any disclosure of wrongdoing is “in the public interest”. This stipulation aims to stop illegitimate whistleblowing claims, and prevent employees from using the legislation to manipulate the employment law system.

Here we look at a case[1] that has considered this issue.

In this case, an employee complained that her cramped working conditions posed a risk to her health and safety, and that this was classed as a protected disclosure. However the original employment tribunal struck out her case at a preliminary hearing - without evidence being heard - as it believed it rested on circumstances highly relevant to the employee, and as such, did not meet the public interest criteria.

An Employment Appeal Tribunal (EAT) has now overturned this decision.

According to the EAT, it was arguable the complaint could have been made with the reasonable belief that other employees might have been similarly affected, and that this was sufficient to satisfy the public interest requirement. Only in hearing the case, would a judge be able to determine whether or not this was the case.

While the woman may not ultimately be successful, this decision does mean that she will be allowed to continue her case. Interestingly, it also means that it is rarely appropriate for an employment tribunal to dismiss a whistleblowing case on 'public interest' grounds, without hearing the full facts.

If you are concerned about the impact of this decision, or any whistleblowing issue, please contact us today.

[1] Morgan v Royal Mencap Society

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