Siobhan Murphy
Posted on 23 Feb 2021

When is a whistleblowing disclosure made in the public interest?

Dobbie v Paula Felton t/a Feltons Solicitors (UKEAT/0130/20/OO)

Background

The Claimant was a consultant solicitor at the Respondent firm of solicitors. As part of his role, he was involved in work for Client A and contended that, on three occasions, he had made protected disclosures that Client A had been overcharged by the Respondent. The Claimant was subsequently dismissed by the Respondent for various reasons, including capability issues, and the fact that the Claimant continuously asked for an increase in pay in respect of work done for Client A.

The Claimant brought proceedings in the Employment Tribunal (ET) against the Respondent, claiming that, as a result of his protected disclosures, he had been subjected to a number of detriments, including the termination of his consultancy agreement. 

The Law

For a disclosure to constitute a "qualifying disclosure", it must be (i) a disclosure of information; (ii) of which the subject matter, in the reasonable belief of the worker making it, tends to show that one or more of the six specified types of malpractice or failure has taken place, is taking place or is likely to take place; and (iii) which is in the reasonable belief of the worker making it, in the public interest.

In this case, the area of contention surrounded whether or not the disclosure had been made in the public interest under point (iii) above. The public interest requirement was introduced in 2013 to avoid workers claiming whistleblowing protection for breaches of their own contract.  The leading case in this area at the time of writing is Chesterton Global v Nurmohamed [2017] EWCA Civ 979, in which the Court of Appeal held that a disclosure should serve a wider interest than the private or personal interest of the worker making the disclosure, taking into account all of the circumstances of the particular case. It is not enough for there just to be more than one person’s interest at stake and it is not simply a question of whether the issue ‘extends beyond the workplace’. The case also clarifies that there might be more than one reasonable view as to whether a particular disclosure was in the public interest, and the tribunal should not substitute its own view. In addition, a belief in the public interest need not be the predominant motive for making the disclosure.

The judgment in Chesterton confirmed that a multi-factorial approach may be useful when undertaking the assessment of 'public interest', and relevant factors may include:

  • the number in the group whose interests the disclosure served
  • the nature of the interests affected
  • the extent to which those interests are affected by the wrongdoing disclosed
  • the nature of the wrongdoing disclosed
  • the identity of the alleged wrongdoer

What did the ET decide in Dobbie?

The ET considered that the Claimant's primary motivation in making the disclosures was to avoid Client A losing out on recovering part of his costs in a litigation dispute.

On analysing this reason for the disclosure, the ET considered whether it constituted something in the public interest. For the avoidance of doubt, the ET made no finding that the Respondent did, in fact, overcharge Client A. The ET was only concerned with what the Claimant reasonably believed. It did not think that the Claimant believed, when he made the disclosures, that the information disclosed would enhance the protection of the public from solicitors who, in their interim bills, overstated the hours spent on working on cases. As such, the ET considered that the disclosures were private in nature.

It was also concluded that, in any event, the reasons for the Claimant's termination were not linked to any alleged protected disclosure, but to other unrelated factors, such as capability.

The Claimant subsequently appealed the decision on the grounds that the ET had misapplied the public interest test and had misapplied the test for whether the termination of the Claimant’s consultancy agreement had been caused by the disclosure.

What did the Employment Appeal Tribunal (EAT) decide?

The EAT disagreed with the ET's application of the relevant legal tests. It was important to remember that, whilst the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it. The ET also did not appear to go through the relevant factors raised in the Chesterton case, including the nature of the information disclosed or the identity of the wrongdoer.

Instead, the ET appeared to have introduced a requirement for the worker to believe that the disclosures would enhance the protection of the public or a section of the public. It required that there be a group that is likely to be protected for there to be a reasonable belief that a disclosure is made in the public interest. There is no such equivalent requirement as a matter of law and, given that the legislation indicates that disclosures should normally be made to the employer in the first instance, the public may never get to know about the disclosure. As such, there may be no protection for a section of the public and this should not be fatal to a whistleblowing claim.

The EAT also upheld the second ground of appeal on the basis that the ET had considered the wrong test for causation of the Claimant's termination. They should have focused on whether the disclosures had a material effect on the Respondent's decision to dismiss. Instead, they had determined that the disclosures ‘had little influence’, which was not the same as having had no material effect. The EAT held that, if the making of the protected disclosures was an effective cause of the termination of the consultancy agreement, a detriment will be made out, even if the agreement would have been terminated, in any event, absent the making of the disclosure.

What does this mean for employers?

This case emphasises the need for employers to carefully consider disclosures made by their workforce, even where they may not appear to be whistleblowing disclosures on the face of it or where they may be untrue. It is useful to adopt a whistleblowing policy which sets out the procedure that an employee should follow when making a whistleblowing disclosure and draw this to the attention of the workforce, to avoid any disclosures being overlooked and subsequently complained about at a later date.

Even where a disclosure appears to be motivated by personal reasons, it is important to consider whether the information disclosed could also be capable of being in the public interest. This may be more likely where the employer is a large public sector employer, or one with similar obligations to a solicitor's firm as in this case (i.e. where honesty and integrity are core requirements).

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.