Tue 02 Mar 2021

Disclosure still in public interest despite primary private purpose

Protecting the public interest need not be the sole purpose of a disclosure

For a worker to be protected under whistleblowing legislation, they must have made a "qualifying disclosure".  That means the information being disclosed by the worker must relate to one (or more) of six specified relevant failures. In addition, the worker must have a belief that the information tends to show one of those relevant failures and, since 2013, the worker must also have a belief that the disclosure is in the public interest. 

In 2017, in Chesterton Global Limited v Nurmohamed, the Court of Appeal considered whether a disclosure made in a worker's private interests could also meet the public interest requirement. The Court held that where a disclosure relates to a matter which is personal to a claimant there may be features of the case that still makes it reasonable to regard the disclosure as being in the public interest.   Factors that may be relevant in assessing that 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 (iv) the identity of the alleged wrongdoer.

The issue of public interest has been considered again, this time by the EAT, in Dobbie v Felton t/a Feltons Solicitors.  Mr Dobbie had been engaged as a consultant by Felton Solicitors, during which time he qualified as a solicitor.  He was substantially involved in work for Client A, one of the firm's most important clients.  After his consultancy was terminated he brought a whistleblowing claim alleging he had been subjected to detriment after making disclosures regarding overcharging Client A.

The employment tribunal dismissed his claim.  Although it found the claimant had disclosed information which he tended to believe (i) showed the respondent had overcharged the client; (ii) that that was a breach of a legal obligation; and (iii) that these beliefs were reasonable, the tribunal concluded that the claimant did not reasonably believe the disclosure was in the public interest. In coming to their conclusion the tribunal had not referenced any authorities, including the Chesterton case.

The EAT upheld an appeal by the claimant, finding that the tribunal, when assessing the claimant's belief in the public interest of his disclosures, had only applied the first of the four factors listed in Chesterton - the numbers in the group whose interests the disclosure served.  This led to the tribunal's conclusion that the disclosures related to a private matter.  That however failed to take into account the identity of the wrongdoer - a solicitors firm that is subject to high requirements of honesty and integrity - and that the nature of the alleged wrongdoing included potential regulatory breaches.  Nor was there any apparent analysis of the nature of the interests affected and the extent to which they were affected by the disclosed wrongdoing. 

The EAT made a number of further interesting observations including that a matter of "public interest" is not necessarily the same as one that interests the public, need never be known about by the public and can relate to a specific incident with no likelihood of repetition.  The EAT was also of the view that even if the claimant's primary motivation was his own personal interests that does not prevent the disclosure from being made in the public interest.

It is important that employers are cognisant of the fact that there may be multiple reasons for a disclosure.  Careful consideration should be given to whether information provided by a worker or employee could amount to a protected disclosure, even if it appears to be made in the personal interests of the employee.  This is all the more important if dismissal or some other detriment takes place shortly thereafter.  Ensuring there is a clear paper trail evidencing that the reason for any subsequent action is unconnected to a potential protected disclosure is highly desirable.    

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