The Employment Appeal Tribunal has ruled that the new public interest test for whistleblowers should not be interpreted too strictly. It has upheld an employment tribunal’s decision that it had been reasonable for the claimant to believe he was acting in the public interest when exposing an accounting error that was adversely affecting the pay of 100 senior managers (including himself).
The EAT pointed out that the new public interest test, which was introduced in June 2013, did not require the disclosures actually to be in the public interest, as long as the claimant reasonably believed that to be the case. It also said that this new requirement needed to be interpreted in the light of the reason for its introduction – which was to reverse the effect of an earlier EAT decision in Parkins v Sodexho. As a result of that case, decided over 10 years ago, before the June 2013 changes employees were able to claim protection as whistleblowers when they were merely complaining about breaches of their personal contract of employment.
It seems therefore that where breaches of an individual’s contract of employment are relied on, some wider interest is likely to be sufficient, even if this is confined to a relatively limited number of fellow workers. The EAT stressed that public interest question will remain a decision for the employment tribunal and declined to give any firm indication of the numbers likely to be sufficient. Indeed, although it invited both barristers in the appeal to see whether cases from other areas of law could help in defining the phrase “in the public interest”, no one could track down decisions that would be helpful in this context.
Despite the absence of clear guidance, it is reasonable to infer from this decision that 100 or more co-workers, even if they are employed by a private limited company, are likely to constitute a sufficiently large group of the public for these purposes. It remains to be seen if a smaller number will also be sufficient.