Whistleblowing and the meaning of public interest

Morgan v Royal Mencap Society [EAT] | 2016

Ms Morgan complained that:

• Her cramped working environment at work was exacerbating a knee injury;
• Her knee injury and lower back were being strained by the cramped conditions.

She later resigned and claimed that her dismissal was automatically unfair and she had been subjected to detriment as a result of making protected disclosures.

She claimed her disclosure was in the ‘public interest’ because Mencap are a charity, financially supported by the public and the public would be interested to know how it treated its employees.

The employment tribunal decided (at a Preliminary Hearing without evidence from her) that, whilst the test was whether Ms Morgan reasonably believed her disclosures were in the public interest, it was not reasonable for her to have believed this.

Ms Morgan appealed and her appeal was successful.  The EAT concluded the employment tribunal was wrong to make this decision without hearing evidence and has sent the case back to an employment tribunal to decide if the disclosures pass the ‘public interest’ test.

In reaching this decision the EAT took into account:

• The ‘public interest’ test is not whether the disclosure was actually in the public interest.
• The test is whether Ms Morgan believed the disclosure was in the public interest and was her belief reasonable. The employment tribunal could not decide this without hearing her evidence.
• The test is fact sensitive. A finding in one case does not mean that the same finding will be reached in another.

Whilst this case has not decided whether the complaints made by Ms Morgan were in the ‘public interest’, it is a reminder that this relatively new addition to whilstleblowing law, will continue to be a point of argument for claimants and employers alike.

At first glance, the case to date (Chesterton) seem to suggest this test has a low threshold.

Chesterton is due to be heard by the Court of Appeal in October 2016.