How Interesting? The public interest disclosure requirement of s.43B(1) of the Employment Rights Act

Mon, 29 Jun 2015

Not everything that may be interesting to the public is likely to be 'in the public interest'.  But is that a commonly held or understood view?  Does the retention of a subjective test in s.43B(1) of the Employment Rights Act 1996 (detriment due to the making of a 'public interest' disclosure) mean that the purpose of the 2013 amendment to that section will not always achieve the intended aim?

The public interest disclosure requirement of s.43B(1) of the Employment Rights Act was inserted (by the Public Interest Disclosure Act) to encourage employees to 'blow the whistle' without fear of adverse consequences - in order to ensure that matters of public interest concerning wrongdoing in the workplace were not swept under the carpet by employers.  This, it was envisaged, would assist in the detection, exposure and elimination of misconduct, malpractice and potential dangers.  The wording of s.43B(1), as originally drafted, led to a finding that a disclosure of information by an employee tending to show a breach or intended breach of a legal obligation arising from their own individual contract of employment could amount to a protected disclosure (Parkins v. Sodhexo Ltd [2002] IRIR 109).  As a result, the Tribunal received many claims where the whistleblowing provisions were relied upon in situations where the interest could only ever be described as being of personal interest to the Claimant, rather than of wider public interest.

With the stated aim of reversing the effect of Parkins v. Sodhexo, s.17 of the Enterprise and Regulatory Reform Act 2013 was passed, which amended s.43B(1) ERA 1996 so as to insert a public interest test.  That section, introducing the various categories of qualifying/protected disclosures, now reads as follows:

In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following - (a) that a criminal offence has been committed, is being committed or is likely to be committed (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject  - etc.

During its passage through Parliament, Mr Norman Lamb (then the Secretary of State for Business, Innovation and Skills) confirmed that Perkins v. Sodhexo had "widened its [the Public Interest Disclosure Act] scope beyond what was originally intended" and that the amendment, by adding "a public interest test" would "remove the opportunistic use of the legislation for private purposes."

This begs the question, 'what is in the public interest'?  One answer to that question has been provided by Hale LJ (albeit in a rather different legal context, namely the Reynolds defence of publication in the public interest to a defamation claim).  She held that,

"The public only have a right to be told if two conclusions are fulfilled.  First, there must be a real public interest in communicating and receiving the information.  This is, as we all know, very different from saying that it is information which interests the public - the most vapid tittle-tattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it.  It is also different from the test suggested... of whether the information is 'newsworthy'.  That is too subjective a test, based on the target audience, inclinations and interests of the particular publication.  There must be some real public interest in having this information in the public domain." (Jemeel v. Wall Street Journal Europe [2007] 1 AC at 408C-D)

Whilst one might hope, as Hale LJ clearly believes, that everyone knows that information that interests the public is not necessarily the same as information that is in the public interest; the wording of s.43B (as amended) means that it is the subjective belief of the employee disclosing the information that is all important.  Provided his/her belief that information is in the public interest is a reasonably held belief, the disclosure of that information will be protected.  This was recently confirmed in the first reported authority on the amended section - Chersterton Global Limited and Verman v. Nurmohammed (UKEAT/0335/14/DM) in which Supperstone J held that,

"the question for consideration ... is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest."  Commenting on the subjective nature of that test, the EAT confirmed that, provided the worker's belief is reasonable (an objective consideration), the disclosure would be protected even if there is in fact no public interest in the information disclosed (or even if the factual basis of the disclosure is wrong). 

Parliament could have, but chose not to remove all subjectivity.  Rather than leave the matter as a purely objective determination for the Tribunal, it provided that a reasonable belief would be sufficient.  Accordingly, there may still be whistleblowing cases where the original purpose of the Public Interest Disclosure Act will be absent - cases in which, because of his/her erroneous but reasonable belief, an employee (or worker) gains the protection of s.43B(1) notwithstanding the complete lack of any public interest in the information disclosed.

When will an employee's belief that his/her disclosure is of public interest be considered reasonable?  Naturally, this can only be answered on a case by case basis.  The answer, presumably, will be that that it depends (in large part at least) on exactly how interesting the information was.

Written by Charles Crow, member of No5 Chambers Employment Group.

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