Employees who blow the whistle at work are protected by law from resulting dismissal and detriment.
Whistleblower protection laws were first introduced in the UK under the Public Interest Disclosure Act 1998 in response to a number of high profile disasters and scandals, in which it was reported that staff had been afraid to raise their prior concerns.
Changes were made to the original whistleblowing laws in 2013 and we have just seen the first decision interpreting one of those changes. But counts as ‘in the public interest’?
When is whistleblower protection triggered?
Assessing whether a worker qualifies for whistleblower protection is complicated and there are several criteria that must be met. The individual must have made a ‘qualifying disclosure’. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six specified types of ‘relevant failure’ has taken place, is taking place, or is likely to take place.
Relevant Failure
• A criminal offence;
• Breach of any legal obligation;
• Miscarriage of justice;
• Danger to the health and safety of any individual;
• Damage to the environment;
• The deliberate concealing of information about any of the above.
Originally (and perhaps surprisingly given the name) the Public Interest Disclosure Act 1998 did not require a qualifying disclosure to be ‘in the public interest’. This led to an unintended consequence, which gathered momentum through case law in the employment tribunals.
The former definition of a ‘qualifying disclosure’ was broad enough to include a disclosure alleging a breach of an individual’s own contract of employment (‘breach of a legal obligation’), without any assessment of whether the disclosure was in the public interest.
For example, in one whistleblowing case an employee claimed that when he had complained to his employer that he had not been paid the hourly rate promised at interview, he had made a qualifying disclosure. The tribunal agreed and went on to find that his subsequent related dismissal was automatically unfair under whistleblowing law, circumventing the requirement for a minimum period of qualifying service.
Individuals were able to use the whistleblowing legislation to bring unfair dismissal claims when they did not otherwise have the qualifying length of service with the employer, to lift the usual cap on unfair dismissal compensation and to seek an award for injury to feelings.
Changes in 2013
There was concern that the Public Interest Disclosure Act was being used for matters of purely private interest. The position was reviewed for the Enterprise and Regulatory Reform Act 2013. The government stopped short of enacting an amendment excluding all breaches of a worker’s own contract of employment from constituting a qualifying disclosure.
However, a ‘public interest’ test was introduced, so that the worker making the disclosure would need to have a reasonable belief that the disclosure was ‘in the public interest’.
At the same time, the requirement for a qualifying disclosure to be made ‘in good faith’ was removed. However, a new power for employment tribunals to reduce compensation by up to 25 per cent if a protected disclosure has not been made in good faith was introduced.
The introduction of an undefined ‘public interest’ test was opposed by some. It may discourage potential whistleblowers from speaking out if they were concerned that, if their disclosure were not found to be sufficiently ‘in the public interest’, they would not be within scope of the protection of whistleblowing laws.
What is ‘in the public interest’?
There has been speculation and argument about what ‘in the public interest’ might mean. Recently, the Employment Appeals Tribunal decided a case, which shed some light on this.
An employee had raised concerns with his employer about the company accounts. He asserted that the company was deliberately supplying inaccurate profit and loss figures to its accountant, which overstated actual costs and liabilities incurred, resulting in lower commission payments.
He believed this had an adverse impact on his commission payments. He also believed it had the same adverse impact upon about 100 senior managers with the company. The tribunal found that:
• It does not matter whether a disclosure is actually in the public interest. What matters is whether the worker held a reasonable belief that it was in the public interest. (The tribunal made no finding as to whether or not there actually was any issue with the company’s accounting - that was outside the scope of the hearing.)
• It is not necessary to show that a disclosure was of interest to the public as a whole.
• A relatively small group of affected people (such as the 100 senior managers) may be sufficient to satisfy the public interest test. A section of the public would be affected. • The fact that the employer was a private company, not a public company, was not relevant.
• The disclosure could still be in the public interest even though the employee was principally concerned with his own personal position. He still had the other affected employees in mind. • Importing definitions of ‘public interest’ that have developed from other areas of the law outside whistleblowing is not helpful.
It therefore appears that an individual’s complaint about his personal employment situation can still make him a whistleblower, so long as ‘enough’ individuals are in the same boat.
It is interesting that this case did not appear to turn upon there being a general ‘public interest’ in company accounts being correctly and properly prepared, regardless of how many or few people were directly affected by the subject of the disclosure. Wouldn’t a very serious failing in, for example, a healthcare setting, which directly affects only a very small group of people, still be in the public interest?
The government also intends to introduce a duty to publish annual reports (with anonymity to the employer and employee) of disclosures made by whistleblowers. At the time of writing (April 2015) this had not been passed.
Further decisions of the tribunals will shed light on what counts as ‘in the public interest’, but until then, some ‘genuine’ potential whistleblowers will worry over whether they will be protected if they speak out, while ‘opportunist’ whistleblowers will take advantage of the lack of clarity.
Certainly, historical scandals continue to emerge which highlight the importance of whistleblower protection. Some clarity over where the ‘public interest’ line should be drawn is definitely in the public interest!
Anne-Marie Balfour, senior associate, Charles Russell Speechlys LLP
Employees who blow the whistle at work are protected by law from resulting dismissal and detriment.
Whistleblower protection laws were first introduced in the UK under the Public Interest Disclosure Act 1998 in response to a number of high profile disasters and scandals, in which it was reported that staff had been afraid to raise their prior concerns.
Changes were made to the original whistleblowing laws in 2013 and we have just seen the first decision interpreting one of those changes. But counts as ‘in the public interest’?
When is whistleblower protection triggered?
Assessing whether a worker qualifies for whistleblower protection is complicated and there are several criteria that must be met. The individual must have made a ‘qualifying disclosure’. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six specified types of ‘relevant failure’ has taken place, is taking place, or is likely to take place.
Relevant Failure
• A criminal offence;
• Breach of any legal obligation;
• Miscarriage of justice;
• Danger to the health and safety of any individual;
• Damage to the environment;
• The deliberate concealing of information about any of the above.
Originally (and perhaps surprisingly given the name) the Public Interest Disclosure Act 1998 did not require a qualifying disclosure to be ‘in the public interest’. This led to an unintended consequence, which gathered momentum through case law in the employment tribunals.
The former definition of a ‘qualifying disclosure’ was broad enough to include a disclosure alleging a breach of an individual’s own contract of employment (‘breach of a legal obligation’), without any assessment of whether the disclosure was in the public interest.
For example, in one whistleblowing case an employee claimed that when he had complained to his employer that he had not been paid the hourly rate promised at interview, he had made a qualifying disclosure. The tribunal agreed and went on to find that his subsequent related dismissal was automatically unfair under whistleblowing law, circumventing the requirement for a minimum period of qualifying service.
Individuals were able to use the whistleblowing legislation to bring unfair dismissal claims when they did not otherwise have the qualifying length of service with the employer, to lift the usual cap on unfair dismissal compensation and to seek an award for injury to feelings.
Changes in 2013
There was concern that the Public Interest Disclosure Act was being used for matters of purely private interest. The position was reviewed for the Enterprise and Regulatory Reform Act 2013. The government stopped short of enacting an amendment excluding all breaches of a worker’s own contract of employment from constituting a qualifying disclosure.
However, a ‘public interest’ test was introduced, so that the worker making the disclosure would need to have a reasonable belief that the disclosure was ‘in the public interest’.
At the same time, the requirement for a qualifying disclosure to be made ‘in good faith’ was removed. However, a new power for employment tribunals to reduce compensation by up to 25 per cent if a protected disclosure has not been made in good faith was introduced.
The introduction of an undefined ‘public interest’ test was opposed by some. It may discourage potential whistleblowers from speaking out if they were concerned that, if their disclosure were not found to be sufficiently ‘in the public interest’, they would not be within scope of the protection of whistleblowing laws.
What is ‘in the public interest’?
There has been speculation and argument about what ‘in the public interest’ might mean. Recently, the Employment Appeals Tribunal decided a case, which shed some light on this.
An employee had raised concerns with his employer about the company accounts. He asserted that the company was deliberately supplying inaccurate profit and loss figures to its accountant, which overstated actual costs and liabilities incurred, resulting in lower commission payments.
He believed this had an adverse impact on his commission payments. He also believed it had the same adverse impact upon about 100 senior managers with the company. The tribunal found that:
• It does not matter whether a disclosure is actually in the public interest. What matters is whether the worker held a reasonable belief that it was in the public interest. (The tribunal made no finding as to whether or not there actually was any issue with the company’s accounting - that was outside the scope of the hearing.)
• It is not necessary to show that a disclosure was of interest to the public as a whole.
• A relatively small group of affected people (such as the 100 senior managers) may be sufficient to satisfy the public interest test. A section of the public would be affected. • The fact that the employer was a private company, not a public company, was not relevant.
• The disclosure could still be in the public interest even though the employee was principally concerned with his own personal position. He still had the other affected employees in mind. • Importing definitions of ‘public interest’ that have developed from other areas of the law outside whistleblowing is not helpful.
It therefore appears that an individual’s complaint about his personal employment situation can still make him a whistleblower, so long as ‘enough’ individuals are in the same boat.
It is interesting that this case did not appear to turn upon there being a general ‘public interest’ in company accounts being correctly and properly prepared, regardless of how many or few people were directly affected by the subject of the disclosure. Wouldn’t a very serious failing in, for example, a healthcare setting, which directly affects only a very small group of people, still be in the public interest?
The government also intends to introduce a duty to publish annual reports (with anonymity to the employer and employee) of disclosures made by whistleblowers. At the time of writing (April 2015) this had not been passed.
Further decisions of the tribunals will shed light on what counts as ‘in the public interest’, but until then, some ‘genuine’ potential whistleblowers will worry over whether they will be protected if they speak out, while ‘opportunist’ whistleblowers will take advantage of the lack of clarity.
Certainly, historical scandals continue to emerge which highlight the importance of whistleblower protection. Some clarity over where the ‘public interest’ line should be drawn is definitely in the public interest!
Anne-Marie Balfour, senior associate, Charles Russell Speechlys LLP
