Whistleblowing

The Employment Appeals Tribunal (EAT) has held that a tribunal was incorrect to strike out a whistleblowing complaint on the grounds of prospects of success. The tribunal had dismissed the complaint at a preliminary hearing because the employee was stated to have no prospects of successfully showing that she had reasonably believed her complaint about her cramped working conditions was in the public interest. The EAT confirmed that this could only be determined at a full hearing.

Where a worker “blows the whistle”, in order to be protected against detriment or dismissal, the worker must have made a “qualifying disclosure”. To be a qualifying disclosure, the disclosure of information must, to the reasonable belief of the worker making the disclosure, be made in the public interest and tends to show that one or more of the six specified types of wrongdoing has, is, or is likely to take place.

The disclosure must also be believed to be made “in the public interest”. This requirement was only included recently for disclosures made on or after 25th June 2013. A recent case held that it is not necessary to show that a disclosure was of interest to the public as a whole but a relatively small group may be sufficient to satisfy the public interest test.

In the case in question the worker brought claims against an ex employer. Her allegation was that she had been constructively unfairly dismissed and subjected to detrimental treatment due to her health and safety complaints, which amounted to protected disclosures. The worker claimed that she had made a verbal complaint to a manager that her cramped working area was adversely affecting her injured knee, which was causing her discomfort; and that she had sent an email complaint to two managers that her knee and her lower back were being strained by cramped working conditions. The worker argued that her disclosures were in the public interest as the employer is a charity, funded by the public. Furthermore, other employees could be adversely affected by the very same working conditions.

The worker appealed the decision of the Employment Tribunal as the Judge had concluded that the disclosures were not a matter of public interest and it could not be the worker’s reasonable belief that they were. The EAT confirmed it would rarely be appropriate for a tribunal to strike out a claim as having no reasonable prospects of success. The tribunal needed to determine whether the worker making the disclosure believed it was in the public interest and whether it was reasonable for them to do so.

Employers need to take care when dealing with complaints of this nature from workers and the treatment of workers after such complaints are made. Complaints which do not appear to be in the public interest may well be taken to be so if the worker can show that they believed the disclosure was in the public interest and it was reasonable for them to do so. Employers should take particular note of the fact that, if an employee can show a dismissal has resulted from making a protected disclosure, the ordinary requirement for having two years’ qualifying service does not apply. Employees are frequently using more inventive ways to gain protection under employment law and the area of whistleblowing is one such example.