Hello and welcome to PJH Law’s case of the week. This week we’re going to be taking a look at whistleblowing. Particularly, the requirement that the employee had a reasonable belief that their disclosure was “in the public interest”.
When considering the importance of this requirement, it is helpful to have a bit of a history lesson as to why it came about.
In 2002, the EAT decided that a disclosure relating to a breach of the employee’s contract of employment could amount to a breach of a legal obligation for the purposes of whistleblowing legislation and therefore a protected disclosure.
This had the consequence of allowing a disclosure relating to the breach of purely private contractual terms (such as the implied term of trust and confidence) to trigger the employer’s obligation not to subject an employee to a detriment for making a protected disclosure.
In other words, employees who disclosed information relating to a perceived breach of the implied term of trust and confidence within their employment contract (so long as it was reasonably held) could trigger the protection of whistleblowing legislation. This was not what parliament intended when enacting the legislation. It was intended to protect employees who acted in the public interest.
This was swiftly addressed by parliament in their amendment to the legislation in 2013. The amendment was the inclusion of the “reasonable belief that the disclosure was in the public interest” requirement. This meant that any disclosure of information that was obviously private and did not concern a matter of public interest was unlikely to amount to a protected disclosure. Whether an employee reasonably believed his disclosure was in the public interest was the matter before the tribunal in this case.
The Claimant worked for a firm of solicitors, initially as a consultant and then as a solicitor. In a series of emails, he raised concerns that a client of the firm’s was being overcharged by other lawyers of the firm but undercharged by him. This affected his retainer with the client.
He was later dismissed on the grounds of competency and providing legal services to his parents. He subsequently brought a claim for automatic unfair dismissal (whistleblowing detriment).
He argued that he reasonably believed his disclosure to show that a legal obligation had been breached (the firm’s obligation to bill client’s appropriately) and that this was in the public interest (as the public are interested in lawyers overcharging them!).
The Tribunal Decision
The tribunal concluded that he did not have a reasonable belief that the disclosures were in the public interest, because the emails appeared to relate primarily to his concerns about the effect of the firm’s billing practices on his own retainer as opposed to any overarching concern about the effect on the public.
The EAT (Employment Appeal Tribunal) sum up the Employment Tribunal’s reasoning well: “The core of the Tribunal’s reasoning was that the Claimant was disclosing information that would assist the Respondent in ensuring that, following a successful court action, and a costs order in Client A’s favour, the prospects of a beneficial assessment of Client A’s costs would be enhanced. Therefore, this was not a disclosure that would enhance the protection of the public or a section of it; it would not affect a solicitor client assessment of costs and so was purely a matter of “private interest”.
The EAT Decision
The EAT disagreed. HHJ Tayler said that just because something may have arisen in an apparently personal context, it is not precluded from being in the public interest.
He states that “where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest”. He goes on to state that “If the Claimant held a reasonable belief that he was disclosing information to the Respondent that tended to show that it was overcharging Client A, in breach of regulatory requirements, and that this disclosure was made in the public interest, the disclosure did not cease to be protected because it was done in the context of him arguing that this issue was important because of the effect it might have on the taxation of Client A’s costs, should it be successful in the claim.”
In other words, just because something arose in a personal context, and chiefly concerned the furtherance of private aims, that does not preclude it from being in the public interest, because inappropriate billing by solicitors is in the public interest.
This is a slightly fiddly case, but it highlights the importance of considering any information disclosed by an employee that could well be in the public interest. Although the information disclosed here seemed to just relate to personal, internal matters between colleagues, it in fact related to the much broader principle of fair and just billing of legal services, which was inevitably in the public interest.