Whistleblowing: ‘Public Interest’ developments

The Employment Appeal Tribunal (“EAT”) recently revisited the issue of whether an employee’s disclosure was made in the public interest.

In Morgan v Royal Mencap Society, the Claimant complained about her cramped working conditions, arguing that they posed a risk to her health and safety.  She maintained that her complaint amounted to a protected disclosure for whistleblowing purpose.  The tribunal disagreed and struck out the Claimant’s claim at a preliminary hearing on the grounds that the Claimant’s disclosure was not in the public interest.

Disclosures made after June 2013 must be made in the public interest (and also satisfy other legislative requirements) in order to attract protection under the whistleblowing regime.  The public interest requirement was inserted into legislation to prevent employees complaining about breaches of their own contract of employment and claiming that such complaints attracted whistleblowing protection.

Employers were obviously pleased by the legislative changes, which made it harder for employees to bring valid whistleblowing claims, but we have seen the ‘public interest’ requirement being somewhat diluted in recent cases.  Following the Chesterton Global Ltd case last year, the EAT clarified that disclosures need not be in the interest of the public as a whole to attract protection.  In that case, a group of 100 senior managers were considered sufficient to satisfy the public interest requirement.

The EAT commented in Morgan that there was a high threshold to overcome before a whistleblowing case should be struck out at a preliminary hearing.  It stated that the tribunal should have taken the Claimant’s case at its strongest (being mindful that she had not given oral evidence) which it did not.  The EAT remitted the case to the tribunal again to fully consider the public interest issue.

Employers should watch this space as to how far the Tribunals are willing to stretch the ‘public interest’ requirement.