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Whistleblowing 'public interest' test can cover internal matters in some circumstances, says UK's EAT

Out-Law News | 13 Apr 2015 | 10:10 am | 2 min. read

Matters covered by someone who 'blows the whistle' on suspected bad practices at their employer need not necessarily be "of interest to the public" to benefit from stricter rules governing whistleblower protection, the UK's Employment Appeal Tribunal (EAT) has said.

The EAT upheld the earlier findings of an employment tribunal judge, who had said that the director of an estate agency was entitled to raise concerns about internal accounting practices that were driving down the rate of bonus payable to him and 100 other senior managers. Its ruling was its first on the point since whistleblowing laws changed in 2013 to restrict protection from repercussions only to those employees that disclosed issues with a "reasonable belief it is in the public interest".

In the ruling, Mr Justice Supperstone said that the new public interest test had been introduced only to prevent workers from claiming whistleblowing protection for breaches of their own employment contracts. As long as the worker had a "reasonable belief" that the disclosure was in the public interest, he could benefit from the whistleblowing rules, he said.

"The objective of the protected disclosure provisions is to protect employees from unfair treatment for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace," he said.

"The words 'in the public interest' were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. As [employment minister Norman Lamb during a parliamentary debate] observed: 'the clause in no way takes away rights from those who seek to blow the whistle on matters of genuine public interest'," he said.

Legal protection for whistleblowers was first introduced in the UK in 1999 as an amendment to the Employment Rights Act. The rules protect employees who make disclosures of certain types of information from retribution by their employers, such as dismissal or being passed over for promotion. In addition, if an employee is dismissed for making a 'protected' disclosure then this dismissal is automatically unfair.

In 2013, the Enterprise and Regulatory Reform Act restricted disclosures that qualified for whistleblowing protection to those that the employee reasonably believed were made in the public interest. The original employment judge in this case concluded that the disclosures made by the estate agency director met this test, and that the 100 senior managers affected by the firm's actions formed "a sufficient group of the public to amount to be a matter in the public interest".

Mr Justice Supperstone upheld the tribunal judge's findings.

"Whilst recognising that the person the [director] was most concerned about was himself, the tribunal was satisfied that he did have the other office managers in mind," he said in his judgment.

"He believed that [his employer], a well-known firm of estate agents, was deliberately mis-stating £2-3 million of actual costs and liabilities throughout the entire office and department network. All this led the tribunal to conclude that a section of the public would be affected and the public interest test was satisfied," he said.