Whistleblowing: The public interest test is widely defined

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Whistleblowing: The public interest test is widely defined

Published 8 April 2021

A worker may be protected as a whistle-blower even if public interest only affects one client, and blowing the whistle is not the workers only motivation.

THE FACTS

To be protected under whistleblowing legislation, a worker must have made a “qualifying disclosure”. This is a disclosure which is, in the reasonable belief of the worker, made in the public interest and tends to show one (or more) of a prescribed type of wrongdoing may be taking (or may have taken) place. One of these types of wrongdoing is the breach of a legal obligation.

Mr Dobbie worked for Feltons, a law firm, as a consultant. He performed a substantial amount of work for one of the firm’s most important clients.

Mr Dobbie claimed that he made three protected disclosures to the effect that this client had been overcharged. He said that he had been subjected to a number of detriments, the most significant of which was the termination of his consultancy contract, because he had made these disclosures. He brought a whistleblowing claim in the employment tribunal.

The tribunal considered that Mr Dobbie had disclosed information that, in his reasonable belief, showed a breach of a legal obligation in respect of overcharging the client. However, the tribunal did not consider that Mr Dobbie reasonably believed that the disclosure was in the public interest. The tribunal found that Mr Dobbie believed that, by disclosing the information, the client’s prospects in an imminent court action would be improved. This was, in the tribunal’s view, a private matter rather than a matter of public interest.

Mr Dobbie appealed to the EAT, arguing that the tribunal had misapplied the public interest test. The EAT agreed with Mr Dobbie. The EAT held that the tribunal had not correctly applied the guidelines set out in existing case law. The tribunal had limited its reasoning to one of the tests set out in the guidelines – the numbers in the group whose interests the disclosure served. This led to the determination that it was a “private matter”, rather than a matter of public interest. However, the protection of one client could have constituted the protection of a section of the public (particularly in the context of solicitors’ regulatory obligations), and could therefore have been in the public interest. A disclosure relevant to only one person can be a matter of public interest.

The EAT also held that, even if Mr Dobbie’s primary motivation had been in his own personal situation, rather than the public interest, this would not have prevented the disclosure from being in the public interest if that had formed part of his motivation.

The case was remitted to the employment tribunal.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This judgment does not change the law. This case is a reminder that “public” includes a section of the public and could, in some circumstances, consist of one member of the public and that “public interest” need not be the only motivation for the worker’s allegation of wrongdoing. As long as a genuine belief that making the allegation is in the public interest forms part of the worker’s motivation, the worker may be protected as a whistle-blower.

Dobbie v Felton (t/a Feltons Solicitors)

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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