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Whistleblowing in the COVID-19 era – the public interest test

In our previous article we set out what kind of information needs to be disclosed for it to qualify as a protected disclosure. Here we look at another key requirement, that the person making the disclosure reasonably believes it is in the public interest.

What is (or is not) in the ‘public interest’ is not defined in legislation, and subsequently it can be difficult to determine. It will be especially difficult to decide whether something is in the public interest where the person making the disclosure also has their own personal interest in it.

Individual members of the public are not often interested in the subject matters of protected disclosures – rarely are they the explosive and headline grabbing issues that are more commonly associated with the word ‘whistle-blower’. Members of the public are, however, likely to be more interested in issues that have direct relevance to their lives, such as whether they might be able to go abroad for a summer holiday this year!

However, just because there are problems that people would rather not know about (and may not even ever come to know about) it would be wrong for the law to simply protect those who raise concerns about issues that people are actually interested in.

Can private grumbles become a public issue?

The Employment Tribunal must differentiate between private grievances (for example a dispute over pay or another part of a worker’s contract) and a disclosure of information in which the public would (or could) be interested.

The leading case on this topic involved a senior manager at an estate agent, who provided information in relation to alleged manipulation of the employer’s accounts. The manager felt that this had a negative impact on his commission, as well as that of around 100 other managers in the company. The Court of Appeal agreed that this could constitute a protected disclosure, and that it was in the public interest due to the number of people impacted.

This was a perfect example of something which was both a private grievance (the manager was clearly unhappy that his commission was suffering) and also something a little more ‘public’. It can hardly be said that the public at large would be interested in this, in the sense that it would be unlikely to make headlines or that it affected absolutely everyone. However, it was found that it was sufficiently ‘public’ for it to fall under the scope of the whistleblowing legislation.

The Court of Appeal further ruled that the key questions to ask when trying to decide if a matter is ‘in the public interest’ or not are:

  • How many people does it affect?
  • How badly are those people affected?
  • Is the wrongdoing deliberate or accidental?
  • Who is the perpetrator of the wrongdoing, and is it an especially significant or prominent organisation?

Bridging the gap

These key questions have recently been reaffirmed in another case, which involved a firm of solicitors. The person making the disclosure in that case argued that they had made a protected disclosure when they had informed the firm that they believed it had overcharged a client for work done and, in so doing, prejudiced that client’s chances of recovering its opponent’s costs.

The Employment Tribunal had decided that the disclosures were a private matter between the Claimant, their employer and the client. It did not affect the public or a section of the public. On appeal, the Employment Appeal Tribunal (EAT) stated that, in coming to its decision, the Tribunal had not applied the correct test (above) and nor had it explained why it was not in the public interest. The EAT overturned the Tribunal’s decision, holding that the disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.

The case is most useful for its discussion and commentary on bridging the divide between private and public matters, and particularly in using the example of a nurse who informs their employer that a drug has been incorrectly administered to a patient. Using the Tribunal’s reasoning above it could be argued that this would be a private matter between nurse, hospital and patient. However, following the EAT, certain causes (such as the proper protection of patients) will generally be issues in which the public would be ‘interested’, at collective and individual levels. Even if we are not currently a patient at that hospital, it is important that there is confidence in the state of the public healthcare system and for any problems with it to be quickly rectified.

COVID-19 and the public interest test

Clearly there are some sectors which have the potential to impact more heavily on members of society than others. In sectors such as the medical profession or the food supply chain, internal issues and wrongdoings are likely to face a disproportionate amount of disclosures that are claimed to be ‘in the public interest’.

However, the pandemic has meant that disclosures which may previously have been categorised as private grievances could be found to be a disclosure in the public interest.

If someone made a protected disclosure about an alleged breach of COVID-related employment or health and safety laws at their workplace, it is entirely possible that their primary grievance would  be about catching COVID and/or the associated risks with it. Understandably, that person would want something to be done but their primary grievance would not, in and of itself, mean that the disclosure was in the public interest.

What the recent caselaw demonstrates, however, is that regardless of whether the alleged breach affected the person individually, any organisation that does not take COVID-related health and safety laws seriously could have a serious impact on the public more widely. If the worker in this case could show that they genuinely believed that the making of the disclosure was in the public interest, their whistleblowing claim would proceed.

Such claims would be more likely to succeed if:

  • lots of people (either fellow workers or members of the public) were at risk of catching COVID as a result of the breach;
  • those people were particularly vulnerable to the disease;
  • there was malice rather than ignorance on the part of the employer in not implementing appropriate safety standards;
  • the employer was sufficiently ‘in the public eye’ or had an impact or function upon society;

Similarly, if there was a minor and/or accidental breach of COVID-related health and safety laws by a small and/or insignificant employer, this would make the disclosure less likely to be in the public interest.

Conclusion

Whistleblowing claims are designed to protect people who raise awareness of issues that affect more than just themselves – the title of the relevant legislation is of course the Public Interest Disclosure Act 1998. As such, a complaint in relation to one of the subject areas set out in our previous article (e.g. health and safety) does not automatically make the disclosure ‘protected’; the person making it must reasonably believe that their ‘protected disclosure’ is ‘in the public interest’.

Workers should not be unfairly treated for bringing these kinds of complaints to their employer’s attention, regardless of whether it is a matter of public interest or a private matter; that is just good practice. However, the additional risk of not treating a public interest disclosure appropriately is that the employer could face a costly whistleblowing claim being brought against them. As well as the negative publicity that this would generate, the compensation available for successful claimants can be significant. Since 2013 there has also been the concept of personal liability, which means that workers who victimise their whistle-blowing colleagues can be named as individual respondents in Tribunal proceedings. Making this known in policies can therefore be very useful for deterrent purposes.

The next article in our mini-series contains some practical tips for drafting a whistleblowing policy, to ensure that if a person does have concerns at work that the organisation is sufficiently protected against potential whistleblowing claims.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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