A recent Court of Appeal decision has confirmed that a disclosure which is in the private interest of the worker can still be considered to be in the ‘public interest’ and therefore fall within the whistleblower protection included in the Public Interest Disclosure Act 1998. However, it did confirm that any decision will depend on its facts.
Under the Employment Rights Act 1996, the definition of a qualifying disclosure for whistleblowing purposes includes that “in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest…” What is meant by this phrase was examined in this case.
In the case, the employee complained about the manipulation of the company accounts, one of the consequences of which was that a reduced commission payment was paid to him and approximately 100 other senior managers. The issue that therefore arose was whether a disclosure which is in the private interest of the worker could be considered to be in the public interest simply because it also relates to a relatively small number of other workers as well.
The Court of Appeal held that it could fall within the public interest, stating the mere fact something is in the worker’s private interests does not prevent it also being in the public interest. Whether a disclosure falls within the public interest will depend on the character of the interest served rather than the number of people sharing that interest. Each case will therefore be heavily dependent on its facts.
In deciding whether a disclosure was in the public interest, the courts should consider all the circumstances, and in particular adopt four criteria:
- The numbers in the group – the larger the number affected, the more likely a disclosure will be in the public interest;
- The nature of the interests affected – a disclosure of wrongdoing affecting a very important interest (for example, the welfare of patients in the healthcare sector) is more likely to be in the public interest than a disclosure of a trivial wrongdoing;
- The nature of the wrongdoing disclosed – i.e. whether it is deliberate or unintentional; and
- The identity of the alleged wrongdoer – the larger or more prominent the wrongdoer the more likely this is to engage the public interest.
But the Court did suggest that employment tribunals should be cautious about reaching a conclusion that matters affecting just people within a workforce is a ‘public interest’ disclosure: they should do so after balancing the relevant factors.
Whilst useful in providing some guidance and avoiding the position that it would be “extremely unsatisfactory if liability depended on the happenstance of the circumstances of other employees”, it will undoubtedly lead to further litigation and a lack of certainty as to whether a disclosure will fall within the public interest