Whistleblowing - the Public Interest Test

To gain protection under the whistleblowing legislation, a worker must have made a “qualifying disclosure”. This is a disclosure which, in the reasonable belief of the worker, is made in the public interest and tends to show one or more of a specified type of wrongdoing is taking, will take or has have taken place. One of these is the breach of a legal obligation.

In Dobbie v Paula Felton t/s Felton Solicitors, the tribunal had to consider how broad the interpretation of “public interest” can be.

Mr Dobbie worked as a consultant for Felton Solicitors. He carried out a substantial amount of work for one of the firm’s most important clients. He claimed that he made a number of protected disclosures to the effect that this client had been overcharged and that he had been subjected to a number of detriments in consequence. The most significant of these was the termination of Mr Dobbie’s consultancy contract.

He submitted 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. It did not accept that Mr Dobbie had reasonable belief the disclosure was in the public interest. Instead, it found Mr Dobbie thought that by disclosing the information, the client’s prospects in an imminent court action would be improved. This was a private matter rather than a matter of public interest.

Mr Dobbie appealed successfully to the EAT, on the basis that the tribunal had incorrectly applied the public interest test. The EAT decided that the tribunal had limited its reasoning to one of the tests set out in the guidelines i.e. the numbers in the group whose interests the disclosure served, which caused it to conclude that it was a “private matter”, rather than a matter of public interest.

The EAT considered that the protection of one client could constitute the protection of a section of the public. A disclosure relevant to only one person can be a matter of public interest.

It said that even if Mr Dobbie’s main motivation had been in his own personal situation, rather than the public interest, it would not have prevented the disclosure from being in the public interest if that had formed part of his motivation.

This case is a reminder that “public” element of public disclosure includes a section of the public. In some circumstances, that could consist of one member of the public. Furthermore, “public interest” need not be the only motivation for the worker’s allegation of wrongdoing. As long as there is a genuine belief that making the allegation is in the public interest, the worker may be protected as a whistle-blower.

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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.

Copyright © 2021 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.