Whistleblowing – The Public Interest Test

Posted 02/12/2015

UK legislation sets out certain tests for workers to have the right to bring a whistleblowing claim.One such test is that the worker must make a disclosure in the reasonable belief that it is in the public interest.

The test does not require that the disclosure is in the public interest but that the employee has a reasonable belief that the disclosure is in the public interest.

In Chesterton Global Ltd and anor v Nurmohamed an employee made a disclosure about financial inaccuracies which would impact on their and 100 senior managers’ earnings. It was decided, in this case, that the employee had met the public interest test.It was found that as long as it could be shown the employee had a reasonable belief that a sufficient section of the public were concerned, rather than just that employee, then the test could be met.

In the more recent case of Underwood v Wincanton plc, it was found on appeal that an employee raising an issue about employment terms can satisfy the public interest test where the issue affects a group of colleagues.In that case, an employed driver made a disclosure (along with three colleagues) that there was an unfair overtime allocation because overtime was not allocated to those who paid close attention to vehicle safety and roadworthiness.

It should be noted that Chesterton has been appealed and is currently listed to be heard in October 2016.Until that appeal decision is made, employers should be mindful that 1) whistleblowing disclosures can be about contractual matters and 2) the “public interest” test can be met by a small group of affected people.What will be a sufficient section of the public will be fact-sensitive in each case.It is not a requirement that the disclosure must be made collectively in order for the individual to be able to demonstrate they had a reasonable belief that the issue affected others.However, this would be useful evidence.

The introduction of the public interest test in 2013 was said, by the government, to be designed to close a loophole that allowed individuals to make a whistleblowing claim in relation to matters of purely private rather than public interest. A purely private matter could be an individual not receiving the right pay.Chesterton and Underwood show that the public interest test is given a wide application and so it is not always going to be difficult for an employee to get around this hurdle.

For individual advice, please complete one of our online enquiry forms.