How does the public interest element of the whistleblowing legislation work?

Legislation

A disclosure can only be a qualifying disclosure if the worker reasonably believes that the disclosure is made in the public interest, s.43B(1) ERA 1996. 

Despite the name of the act Public Interest Disclosure Act (PIDA) 1998 had no public interest test for qualifying disclosures until section 17 of the Enterprise and Regulatory Reform Act (ERRA) 2013 introduced the requirement in respect of disclosures made on or after 25 June 2013. This was to correct the impact of the decision in Parkins v Sodexho.

Parkins v Sodexho 

In Parkins v Sodexho UKEAT/1239/00, the EAT held that the definition of a qualifying disclosure was broad enough to cover a breach of the whistleblower’s own contract of employment, despite the fact that this did not, on its face, appear to have a public interest aspect.

The EAT, overturning a first tribunal’s decision, held that it “certainly comes within the letter of the provision, on a literal interpretation“.

The implications of Parkins v Sodexho for employers

Parkins had considerable implications for employers because it widened the scope of a qualifying disclosure to include disclosures about breaches of the worker’s own employment contract and potentially their statutory employment rights. 

There was a concern that employees worried about dismissal would make tactical disclosures. This is why s.17 ERRA 2013 was enacted to attempt to correct the position. 

What does an Employment Tribunal have to decide in relation to whether the disclosure was in the public interest?

The ET has to determine – 

• Whether the worker subjectively believed at the time that the disclosure was in the public interest;

and

• If so, whether the belief was objectively reasonable. 

The tribunal should not substitute its own view if there is more than one reasonable view as to whether the disclosure is in the public interest.

The tribunal is not restricted to the reasons that were in the worker’s mind at the time although the lack of a credible reason might cast doubt on the genuineness of the belief. 

Since reasonableness is assessed objectively it is open to a tribunal to find that a belief was reasonable on grounds not in the worker’s mind at the time. 

Belief in the public interest need not be the predominant motive for making the disclosure. The statute refers to “in the belief” which is not the same as “motivated by the belief”.

There are no absolute rules about what is reasonable to view as being in the public interest.

Parliament chose not to define public interest. Parliament must therefore have intended for tribunals to apply the test as a matter of educated impression.

If the disclosure relates to a breach of the worker’s own contract it can still be in the public interest.

Conclusion

The case law tends to suggest that there has been little change of substance in the scope of protection for qualifying disclosures despite the introduction of the public interest test. The cases suggest that complaints about contracts of employment and working conditions can still attract protection and that the public interest aspect of the legislation is not a significant hurdle for claimants.

This blog was written by Yavnik Ganguly, Senior Solicitor at didlaw.