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Public interest test in whistleblowing should focus on the employee’s belief – and their belief may be separate and distinct from their motive for disclosure
Adrian Fryer
Whistleblowers have protection from both detriment and unfair dismissal. However, the term ‘whistleblowing’ is often used colloquially to cover any disclosure of wrongdoing. In fact, its application, in an employment sense, is much narrower than that.
There are various elements which must be satisfied before an employee will be regarded as having made a qualifying protected disclosure:
- The employee must make a disclosure of information.
- The information must relate to one of seven listed types of wrongdoing: that a criminal offence has been committed, that a person has failed to comply with a legal obligation, that a miscarriage of justice has occurred, that health and safety is endangered, that the environment has been damaged, that sexual harassment has occurred, or, that any of these matters is being, or is likely to be, deliberately concealed.
- The employee must have a reasonable belief that the information tends to show one of the relevant failures.
- The employee must have a reasonable belief that the disclosure is in the public interest.
If all of these elements are satisfied and the disclosure is made to an appropriate person (usually the employer), then the employee will have protection as a whistleblower.
The recent case of Bibescu v Clare Jenner t/a Jenners looked, in particular, at the level to which the tribunal needs to be satisfied that the alleged wrongdoing actually occurred, and the requirement that the employee must hold a reasonable belief that disclosure is in the public interest.
Ms Bibescu worked as an accountant. Issues were raised regarding her performance. A sub-contractor (Mr Grimes) was brought in to review her work. Ms Bibescu was unhappy about this. She disclosed to her employer that Mr Grimes was disqualified as a director but still seemed to be registered at Companies House as one. She also raised that he was not a member of a professional accounting body. Shortly afterwards, Ms Bibescu was dismissed for poor performance. She claimed automatic unfair dismissal and detriment on grounds of whistleblowing.
The Employment Appeal Tribunal upheld the tribunal’s conclusion that the principal reason for dismissal was Ms Bibescu’s performance rather than whistleblowing. However, it allowed Ms Bibescu’s appeal in relation to the detriment claim for the following reasons:
- The tribunal had concluded that the disclosures were not made in the public interest because Ms Bibescu’s motive in making them was to discredit Mr Grimes. This was the wrong approach. The correct question was whether Ms Bibescu believed the disclosures were in the public interest and whether that belief was reasonable. A disclosure may still be in the public interest even if motivated by personal concerns or other factors.
- The tribunal failed to determine whether Ms Bibescu, herself, reasonably believed that her disclosures tended to show one or more of the listed disclosures under s43B(1)(a) to (f) Employment Rights Act 1996. Instead, it assessed whether the alleged wrongdoing had actually occurred. That was a material error of law.
The detriment claims were remitted to a differently constituted tribunal. This case is an important reminder that an employee’s motive for making a protected disclosure does not have to be altruistic and ‘squeaky clean’. They may have their own, self-serving, motives for making the disclosure but this does not mean that they cannot, at the same time, also reasonably believe that the disclosure is in the public interest and/or that it showed one or more of the listed wrongdoings.