Cramping my style – whistleblowing about cramped working conditions may satisfy the ‘public interest’ test

The law on whistleblowing has seen a number of significant developments in recent times. We have previously updated you on the changes to whistleblowing legislation which took place in 2013. One of the changes was the addition of the public interest test. You can find our article about those changes here, and also an article on a case that explored the public interest test (Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (2015)) here.

The public interest test was added in order to reverse the effect of the case of Parkins v Sodexho Ltd (2001), in which it was held that the definition of a qualifying disclosure was wide enough to cover a breach of the whistleblower’s own contract of employment. The government felt that this widened the scope of the legislation beyond what was originally intended.

Essentially, the public interest test means that for an employee to be protected against detriment or dismissal under the whistleblowing legislation, an employee must have made a qualifying disclosure which, in the reasonable belief of the employee making it, is made in the public interest. For a basic overview of whistleblowing legislation and what constitutes a qualifying disclosure, please see our article here.

A recent case has demonstrated that the public interest test really will be interpreted widely, which somewhat nullifies the intention by Government when it introduced the public interest test.

The case (Morgan v Royal Mencap Society) was heard in the Employment Appeal Tribunal (EAT). Ms Morgan had raised complaints with her managers that her cramped working area was adversely affecting a knee and back injury she had. It seems these complaints were not dealt with at all, or not dealt with to the satisfaction of Ms Morgan as she subsequently resigned and made claims to the Employment Tribunal for constructive unfair dismissal and that she had been subjected to a detriment for whistleblowing.

Ms Morgan claimed that the complaints she had made met the public interest test because Mencap is a charity supported by public funds, and therefore the public would be interested to know how it treats its employees. Ms Morgan also argued that it threatened the health and safety of others.

Mencap applied to the Employment Tribunal to have Ms Morgan’s whistleblowing-related claim struck out because her complaints did not meet the public interest test and therefore, had no reasonable prospect of success. The Employment Tribunal agreed with the application (which was dealt with at a preliminary hearing with limited oral evidence given, and none from Ms Morgan) and dismissed the claim. The Employment Judge noted that the public interest test can be satisfied even if there were no public interest in the disclosure, so long as the employee reasonably believed that the disclosure was in the public interest. However, the Employment Judge said in this case Ms Morgan’s disclosures were not considered to be a matter of public interest, and it could not be her reasonable belief that they were.

Ms Morgan appealed the decision to the EAT. The EAT upheld her appeal and sent the case back to the Employment Tribunal for a full hearing. The EAT said that it would only rarely be appropriate to strike out discrimination or whistleblowing-related claims without hearing the full evidence. The EAT emphasised that the test is not to determine whether a disclosure is in the public interest, but whether the employee making it held that belief and whether it was reasonable for them to do so. This is entirely dependent on the facts of the case.

We will now wait and see whether Ms Morgan is successful in the Employment Tribunal case.

The outcome of Ms Morgan’s appeal is of little surprise as it is well known that it is very rare for Employment Tribunals to grant applications for strike-out, particularly for whistleblowing-related claims and also discrimination claims. There is also no surprise that based on the way recent cases have been developing, it seems that the public interest test is going to be interpreted very widely indeed.

As always, employers should review their whistleblowing policies to make sure that a good procedure is in place for dealing with whistleblowing matters promptly. In addition, managers should be trained on these procedures and specifically made aware that whistleblowers should not be subjected to any detriment (including being ignored) or dismissed, even if their complaint does seem rather trivial in nature.

We can help with whistleblowing policies, training or advising on any particular issues involving whistleblowing. Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.