Whistleblowers Benefit from Tribunal Test Case

In a guideline decision which will come as a comfort to workplace whistleblowers, the Employment Appeal Tribunal (EAT) has ruled that the recurring issue of whether a disclosure is ‘in the public interest’ – and thus protected by law – depends not upon some empirical formula but upon the state of mind of the employee concerned.

A branch director who worked for a leading estate agency firm had complained that the costs and liabilities of running the office had been deliberately mis-stated and that this had had a downwards impact on his bonus and those paid to 100 senior managers. An employment tribunal (ET) found that the disclosures were protected and that he had been unfairly dismissed as a result of making them.

In challenging that ruling before the EAT, the agency pointed to the requirement in Section 43B(1) of the Employment Rights Act 1996 that disclosures have to be made in the public interest in order to be protected. It was submitted that the disclosures related to the personal contract of each of the 100 senior managers and so did not qualify as having been made in the public interest.

In dismissing the appeal, however, the EAT found that the public interest test could be satisfied even where the basis of the disclosure turned out to be wrong or where there was in fact no public interest in it being made. What mattered was whether the particular worker’s belief that the disclosure was in the public interest was objectively reasonable. The amount of the man’s compensation will be assessed at a later date.