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Whistleblowing: low threshold for public interest test

The EAT has set a low threshold for satisfying the public interest requirement in the first appellate case to consider the meaning of the test since it became law in June 2013.

The law 

Since 25 June 2013, a whistleblower must make his or her disclosure 'in the public interest', in addition to it showing specified wrongdoing, to benefit from protection against a dismissal or detriment. This case considered what is required to satisfy the public interest requirement.  

The facts

A senior manager at Chestertons Estate Agents made disclosures on three separate occasions asserting that the company was deliberately supplying inaccurate accounts to its accountant which resulted in lower commission payments to him and 100 other senior managers. 

He was dismissed by the company and an employment tribunal found that he had been automatically unfairly dismissed and subjected to detriments by his employer as a result of blowing the whistle. The company appealed the decision, arguing that the disclosure was not in the public interest.

The EAT's decision

The EAT dismissed the company's appeal and held:

  • it is not necessary for the employee to show that the disclosure was of interest to the public as a whole as it is inevitable that only a section of the public will be directly affected by any given disclosure. A relatively small group can be sufficient, here 100 senior managers was found to be enough;
  • it does not matter if there was no public interest in the disclosure being made or if the basis of the public interest disclosure is wrong. What is important is whether the worker reasonably believed that the disclosure was in the public interest.

Comment

Given that this is the first case to be heard by the EAT in relation to the public interest test there is scope for further development but, for the time being, a low threshold has been set. 

It is clear that a relatively small group of the public is sufficient for the purposes of satisfying the public interest requirement. Even if there is no actual public interest in the disclosure being made, provided the worker's belief that the disclosure is in the public interest is objectively reasonable, the test will be fulfilled.

It is worth keeping in mind that the public interest requirement only applies to disclosures made on or after 25 June 2013.

For more on the decision please click here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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