In recent years, there has been considerable government intervention in whistleblowing. Responding to the perception that whistleblowing legislation was being exploited as a means of avoiding the compensatory cap for unfair dismissal claims, the government introduced a requirement that a disclosure is not protected unless it is reasonably believed to be made in the public interest.
Public interest test: a low threshold for claimants?
In Chesterton Global Ltd & Anor v Nurmohamed UKEAT/0335/14, the EAT considered the “public interest” test for the first time. Supperstone J held that the issue is not whether the disclosure per se was in the public interest but whether the worker making the disclosure had a reasonable belief that the disclosure was being made in the public interest. Therefore, the “public interest” test can be satisfied even if a disclosure is incorrect or there is no public interest in the disclosure being made, which introduces an undoubtedly low threshold for claimants to satisfy.
Supperstone J found that the purpose of the legislative amendment was to remove the mischief created by Parkins v Sodexho Ltd [2002] IRLR 109, where breach of contract claims could be brought without any wider public interest implications. Accordingly, workers may only rely on breaches of their own contracts of employment as the subject matter of a protected disclosure where it is reasonably believed the disclosure is in the public interest. Ultimately, the “public interest” test may be satisfied where a relatively small section of the public is affected. What is sufficient is fact-sensitive.
This point was underlined in Underwood v Wincanton Plc (UKEAT/0163/15). In making a protected disclosure, a haulage driver relied on a letter written by him and three other drivers about the unfair allocation of overtime, which suggested overtime was being held back from those who were scrupulous about vehicle safety. The EAT overturned the employment tribunal’s decision to strike out the claim because the ET had taken too narrow a view of the term “public”. It could mean a subset of the general public comprised solely of employees of the same employer. The tentative suggestion in the letter that employees were being punished for carrying out vehicle checks was sufficient to satisfy the test.
What are the implications of the low threshold for in-house lawyers?
It is likely that there will not be a reduction in the number of whistleblowing claims as first expected. This will remain the position for the time being, pending the appeal of Chesterton, which will be heard in the Court of Appeal in October 2016 (with Public Concern at Work intervening). It remains to be seen whether any guidance will be provided on the matters that a worker might reasonably consider to be in the public interest. Further, Wincanton demonstrates that in-house lawyers will need to look very carefully at any complaints or grievances, collective or individual, raised by employees in case they could be construed as a protected disclosure.
That said, the “public interest” test does carry potentially significant evidential requirements for claimants. A claimant must now prove that they had the public interest in mind when making a protected disclosure. Accordingly, a claimant will need to articulate this element of public interest. While it is likely to be rare for a workplace issue to affect one worker alone, a worker may overlook the need to express this element if they have focused on their own concerns. In certain cases, this could prove fatal to a claim.
Causation defence: levelling the playing field for respondents?
While the interpretation of the “public interest” test is a low threshold for claimants, recent cases have demonstrated that the causation defence can be helpful for respondents and should be considered more widely. Readers will be aware that it is the making of a disclosure that is protected, not the circumstances surrounding it. This principle has been applied strictly by ETs.
In Salisbury NHS Foundation Trust v Wyeth (UKEAT/0061/15), the claimant made several protected disclosures about inappropriate drug use by a colleague. When the matter was eventually investigated, the claimant was not put forward as a witness because his line manager was embarrassed that she had failed to investigate his earlier disclosures. Subsequently, the claimant’s shifts were moved for “operational needs” and he claimed constructive automatic unfair dismissal. On appeal, the EAT found that the real reason for the employer’s actions was the line manager’s desire to avoid embarrassment and their failure to deal with the disclosures, which broke the chain of causation between the disclosures and dismissal.
This issue was also considered in Shinwari v Vue Entertainment Ltd (UKEAT/0394/14). The claimant resigned after the respondent failed to keep his identity confidential by disclosing a witness statement in which he made protected disclosures about another employee. Simler J held that the ET had drawn a proper distinction between the making of the protected disclosures and the consequences, which were related but separable. While Simler J noted that the EAT had suggested in Woodhouse v WNW Homes Leeds Ltd [2013] IRLR 773 that this principle should only apply in exceptional cases, she held that there is no additional requirement that a case be exceptional.
This defence is not always an attractive one to run. However, it is important that causation is properly pleaded in the ET3 in the event that it becomes necessary to rely upon the argument. It is also essential that the reasons for a decision are properly articulated and recorded at the time. Respondents should ensure that their witness evidence addresses any separable features clearly and carefully.
Employers should make sure that whistleblowing policies and/or training reflect these distinctions. Further, guidance should be updated to include the “public interest” test so that employees have an understanding of what they must prove.
