Seemingly private matter qualifies for public interest requirement
A worker is protected from detriment and dismissal if they have made a ‘qualifying disclosure’. The worker must reasonably believe that the disclosure is in the public interest and tends to show wrongdoing such as a failure to comply with a legal obligation. The public interest element of the test is designed to differentiate between personal interests and those which have a wider application. But the worker need only reasonably believe that the disclosure is in the public interest (rather than it actually being so) and it doesn’t have to be the worker’s only motivation in making the disclosure. The EAT has recently looked at the public interest requirement in Dobbie v Feltons.
The employee in that case worked for a firm of solicitors as a consultant solicitor, working with one of the firm’s biggest clients. He made what he said were protected disclosures about the firm overcharging the client. One of his disclosures also related to his own fees being written off to a greater extent than other fee earners. He said he had been treated badly because of these disclosures including having his consultancy agreement terminated. He brought a whistleblowing claim.
The employment tribunal found that the employee reasonably believed that the disclosure tended to show the breach of a legal obligation - he believed the overcharging was a breach of the firm’s client obligations and a possible breach of accounting rules. However, they found that he did not reasonably believe that his disclosure was in the public interest. They found that he believed it was a private matter relating to the individual client. The employee appealed to the EAT who agreed with him. The tribunal had misapplied the public interest test. They hadn’t considered the identity of the alleged wrongdoer – a firm of solicitors which is subject to high standards of honesty and integrity. The nature of the wrongdoing had not been properly considered either, which included potential regulatory breaches. Those regulations are in place to protect the public. Although public interest is more likely to be found when more people are affected, there are cases where disclosures relating to one person can have a wider remit. Here, the disclosures could have advanced a wider public interest around solicitors complying with regulatory requirements and not overcharging their clients. Having found that the employee reasonably believed that there had been regulatory breaches by way of overcharging, the tribunal had not explained their finding that this was a purely private matter and wasn’t protected. The EAT sent the case back to a fresh employment tribunal to reconsider whether the disclosures were made in the public interest.
This case shows that disclosures can be made in the public interest in cases which relate to apparently private matters. This can be the case even when matters may be motivated by self-interest – in this case the solicitor’s own fees being disproportionately written off. Provided the employee reasonably believes that the matter is in the public interest, the test will be satisfied. Even if issues relate only to one client or person, they may have a wider public interest as was the case here.
