United Kingdom: Meaning of “made in the public interest” in whistleblowing claims

Key takeaways

• The decision is a helpful reminder that there are no absolute rules about what it is reasonable to view in the public interest and it is not necessary for more than one person to be in the group whose interests the disclosure served for it to be in the public interest.
• However, the factors set out in ‘Chesterton’ will be relevant. These include (i) the numbers in the group whose interests the disclosure served, (ii) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed, (iii) the nature of the wrongdoing disclosed and whether it is deliberate, and (iv) the identity of the alleged wrongdoer.
• The EAT also made the following observations on the public interest test:
  • Something that is “in the public interest” is not necessarily the same as something that interests the public
  • A matter can be in the public interest even if:
    • the public would rather not know about it
    • the public will never know about it
    • it is a one-off act that is unlikely to be repeated
  • The legislative intention was to exclude matters that are just of personal or private interest to the individual making the disclosure
  • However, disclosures that are only of personal or private interest to the recipient (and not in the wider public interest) could also be excluded
  • A disclosure that is made to damage the public interest will unlikely be protected e.g. a disclosure of unlawful waste discharge but with suggestions on how to cover this up
  • Generally workers make disclosures to draw attention to wrongdoing and that is relevant to the question of whether there is a reasonable belief that a disclosure is made in the public interest.
• For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.

In more detail

Background

Since 2013, an employee can only be protected as a whistleblower where they have a reasonable belief that their disclosure of wrongdoing is in the public interest (there are also other qualifying requirements, not covered here.)

The Court of Appeal considered the question of when a disclosure can reasonably be viewed as made in the public interest in Chesterton Global Ltd v Nurmohamed. The Court confirmed that there are no absolute rules about what is reasonable to view in the public interest but relevant factors include the numbers in the group whose interests the disclosure served, the nature and extent of the interests affected, the nature of the wrongdoing disclosed and whether it is deliberate, and the identity of the alleged wrongdoer. More details on the ‘Chesterton’ decision can be found here.

Facts

Mr. Dobbie worked as a consultant for a law firm. He made various allegations that a client had been overcharged in a contentious matter, which he was concerned would affect their ability to be recovered in litigation. He claimed he had been subjected to various detriments including having his consultancy agreement terminated.

The tribunal considered that Mr. Dobbie reasonably believed that his client had been overcharged (there was no finding on the actual allegation itself) but that it was not a qualifying disclosure as it failed the public interest test. The tribunal felt that Mr. Dobbie was concerned about how the charging arrangements would affect the recovery of costs in litigation for this client, which was a private matter. Mr. Dobbie appealed.

EAT decision

The EAT upheld the appeal. The tribunal had misapplied the public interest test. It was not evident from its decision that it had considered the ‘Chesterton’ guidelines. In particular, the tribunal appeared to have limited its consideration to the first factor in ‘Chesterton’, the numbers in the group whose interests the disclosure served, and in holding that it was only one client affected, it concluded it was a private matter. It did not appear to have considered other relevant factors including that the alleged wrong-doer was a firm of solicitors, subject to high standards of honesty and integrity, or the nature of the alleged wrongdoing, which were potential regulatory breaches designed to protect the public.

The EAT remitted the case to the tribunal to consider the public interest element. The appeal also succeeded in relation to the way in which the tribunal applied the causation test for whistleblowing detriment (not covered in this update).

Dobbie v Felton t/a Feltons Solicitors, EAT