The Public Interest Test
In order for a concern to be protected by the Public Interest Disclosure Act 1998, the concern must be in the public interest.
The public interest requirement is the defining feature of whistleblowing law. Public interest separates out concerns about someone’s ‘private’ employment rights from ‘public’ concerns that have wider impact and are more likely to be covered by whistleblowing protection.
Why is there a public interest requirement?
The public interest requirement was introduced in 2013 in order to prevent people using whistleblowing law to enforce their own personal contracts of employment.
The government introduced the requirement to reverse the decision made in the case of Parkins v Sodexho [2002] in which the Employment Appeal Tribunal (EAT) decided that a disclosure about a breach of the whistleblower’s own contract was protected under PIDA. This was a surprising decision at the time as PIDA was thought to only cover disclosures about wrongdoing which affected other employees or third parties where there was some sort of public interest. The EAT stated that it was difficult at the time to “define the spirit of this sort of legislation” meaning that they did not know what the principle of PIDA was and therefore interpreted the law literally.
This decision led to cases where employees would use PIDA to enforce their own private employment law rights and made “tactical” disclosures about alleged breaches of their own contracts when they considered themselves at risk of dismissal. In these cases, the employees should have been exercising their rights in other areas of employment law and this was against the intention of Parliament in the implementation of PIDA.
Therefore, in the Enterprise and Regulatory Reform Act 2013, the government amended PIDA to include the public interest requirement.
Now is section 43B(1) of the Public Interest Disclosure Act 1998, it states that a protected disclosure is one which “in the reasonable belief of the worker making the disclosure is made in the public interest“.
But what does this mean in practice?
Public concern
As a general rule, if you act as a witness to wrongdoing, it is more likely that you will satisfy the public interest test. This means that the concerns impact others rather than just yourself.
EXAMPLE: A is on furlough and therefore he is legally not permitted to do any work whilst he is being paid by the government’s Job Retention Scheme. A’s manager asked him to come into work as normal. A wants to raise this as it is an abuse of the government’s scheme and tax payer’s money.
EXAMPLE: B works at a care home. They have witnessed their colleague force-feeding one of the residents who can be particularly challenging. B knows that this is an abuse and wants to report their concerns to safeguarding.
Private concern
If the concern is about your own treatment at work only, then this is likely more of a ‘private’ concern about your own contract of employment. It will be difficult to satisfy the public interest test. In these types of cases whistleblowing may not be the most effective option for you. Instead, you should get general employment law advice (see here for resources) on your rights and grievance processes.
EXAMPLE: C is having difficulty with her colleague. He is very dismissive of C’s ideas and he is excluding her from the rest of the group. C is really struggling mentally because of this. She wants this to stop. She needs to feel like she is fully part of the team.
Where it gets complicated
Of course, as with the nature of the law, nothing is ever that simple. Where it gets trickier is where the concern has both an impact on you and on others.
EXAMPLE: D is being bullied by her manager. D wants to challenge this but she is not the only one being bullied. A number of D’s colleagues have raised grievances against this manager but nothing is being done. D wants to raise concerns about a culture of bullying in the organisation she works for.
To determine whether this example is in the public interest, we need to look to case law, namely the Chesterton Test.
The Chesterton Test
The Chesterton Test gives us some factors to consider in the more complicated cases where the concern relates to a matter in which the worker has a personal interest, but which also has the possibility of having wider implications. These factors help us decide if the concern is in the public interest.
In the case of Chesterton v Nurmohamed [2017] EWCA Civ 979 a senior manager at Chestertons, an estate agent, raised concerns about manipulation of the company’s accounts, which he believed would mean lower commissions for over 100 senior managers, including himself.
The Court gave the following guidance:
Where the disclosure does relate to a breach of your own contract of employment (or another matter in which you have a personal interest), there may be features of your case that qualify it being in the “public interest”. The Court set out four factors to consider:
- The numbers in the group whose interests the disclosure served.
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
- The nature of the alleged wrongdoing disclosed.
- The identity of the alleged wrongdoer.
“The number in the group whose interests the disclosure served“
In practice, the more people affected by the wrongdoing the more likely that there will be other features of the situation that will engage the public interest.
“The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed“
A disclosure of wrongdoing which directly affects a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, or where the effect of the wrongdoing is marginal or indirect.
“The nature of the alleged wrongdoing disclosed“
Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of unintentional wrongdoing.
“The identity of the alleged wrongdoer“
The larger or more important the wrongdoer (in terms of the size of its relevant community, that is, its staff, suppliers and clients), the more likely a disclosure about its activities engages the public interest – for example, if the bullying behaviour came from the Chief Executive of an organisation. Although this principle “should not be taken too far”.
How these factors are applied will depend on the facts of the case. There is no ‘deciding’ or more important factor to consider when determining the public interest.
Contact us
Recent developments
Okwu v Rise Community Action Ltd [2019]
Facts: Miss Okwu worked for a small charity which worked with individuals impacted by domestic violence, FGM or HIV. Miss Okwu had issues raised about her performance. She then wrote to the charity to raise a number of concerns herself about the charity being in breach of Data Protection legislation by failing to provide her with her own mobile phone with secure storage when she was dealing with sensitive and confidential personal information.
Decision: The Employment Appeal Tribunal held that even if Miss Okwu had raised those matters in defence of her performance, this did not mean that she did not reasonably believe it to be in the public interest. Public interest did not need to be Miss Okwu’s only reason for raising her concern and the tribunal held that it is hard to see how these matters would not be in the public interest in Miss Okwu’s reasonable belief.
Ibrahim v HCA International Ltd [2019]
Facts: Mr Ibrahim was an interpreter in a hospital. He became aware of rumours amongst patients and their families that he was responsible for breaches of patient confidentiality. Mr Ibrahim asked his senior manager to investigate this, and it was then referred to the HR manager who investigated and rejected Mr Ibrahim’s complaint. Mr Ibrahim was later dismissed.
Decision: The Court of Appeal decided that the Tribunal had not considered the decision of Chesterton Global v Nurmohamed which said that the whistleblower must have themselves believed that the disclosure was in the public interest and this belief must be reasonable. The Tribunal in this case had only focused on Mr Ibrahim’s motive, i.e. to ‘clear his name’, rather than his “subjective” belief. Therefore the case was sent back to Tribunal to consider public interest.
Dobbie v Felton (t/a Feltons Solicitors) [2021]
Facts: A solicitor raised concerns about his firm allegedly overcharging its clients for legal advice. The solicitor was concerned specifically about a client’s prospects of recovering litigation costs from its opponent.
Decision: The Employment Appeal Tribunal (EAT) held that if the solicitor genuinely and reasonably believed that the disclosures were in the public interest, that did not have to be his main motive for raising his concerns. He was raising concerns about a breach of Solicitors Account Rules and other regulatory obligations. Just because he was raising them in an attempt to protect his client’s position, did not mean that they were not in the pubic interest.
The EAT rejected that this was a private matter between the client and the firm. The disclosure constituted a protection of a “section of the public” namely it advanced the general public interest in solicitors’ clients not being overcharged and solicitors complying with their regulatory duties.
Impact of #MeToo, BLM and the cultural shift in organisations
Post #MeToo and, more recently, Black Lives Matter, organisations are taking concerns like sexual harassment, racism and other forms of discrimination more seriously – particularly where they demonstrate endemic or systematic problems within an organisation.
So when do concerns about sexual harassment or racism – or even other forms of discrimination and bullying – satisfy the public interest test and when is it appropriate to raise them through a whistleblowing process?
As a general rule, if the harassment, discrimination or bullying is a one-off incident or it only affects you personally, you should get advice on exercising your rights under equality law and/or employment law through an informal or formal grievance process, or in an Employment Tribunal (remembering that you have 3 months less one day from the incident to bring a claim). To do this you should speak to your union or a legal adviser.
You may wish to consider whistleblowing as an option if:
You should also apply the Chesterton tests set out above. The more serious the act of discrimination or harassment and the more prominent the perpetrator is, the more likely the concerns will be in the public interest.
Regulators are also taking concerns about discrimination and harassment in industries more seriously. For example, the Financial Conduct Authority has expanded its remit to cover non-financial misconduct in the financial sector, stating that “non-financial misconduct and an unhealthy culture is a key root cause of harm“.
You should contact our Advice Line before approaching a regulator with your concerns.