UK: Whistleblowing - employers face uphill struggle to strike out claims for lack of "public interest"

A recent EAT ruling has highlighted that, in many cases, the prospects of striking out a whistleblowing claim at a preliminary hearing on the basis of lack of public interest will be minimal. In particular, where the claimant raises an alleged health and safety issue as, according to the EAT, it is reasonably arguable that an employee may consider health and safety complaints to be made in the wider interests of employees generally, even where they are the principal person affected.

The public interest test requires that the worker making a disclosure believed it was made in the public interest and that this belief was reasonable (but not that it was objectively in the public interest). If the claimant alleges that they believe other employees or the public could be affected by the issue disclosed, there would have to be very strong reasons as to why the claimant's view of the facts was simply unsustainable before it would be appropriate to strike out the claim. Whether a belief is genuinely held, and whether it is reasonable to hold that belief, are fact-sensitive questions and will usually require the evidence to be tested at a full hearing.

In Morgan v Royal Mencap Society the alleged disclosure concerned the claimant's own cramped working conditions, but she contended that, as her employer was a charity, she believed that the public would be interested to know how it treated its employees and also that other employees could be affected by similar working conditions. The EAT considered it was wrong to say that no reasonable person could have believed that the disclosure engaged the public interest. As the claimant had not given evidence at the preliminary hearing, her case as to her belief and the reasons for it had to be taken at its best and therefore the claim should not have been struck out.

This ruling builds on the decision in Underwood v Wincanton, where the disclosure related to a failure to allocate overtime to four employees in breach of their contracts, allegedly because they had raised concerns about the safety and road-worthiness of their vehicles.

The Court of Appeal is due to consider when a matter between employees and their employer is capable of satisfying the public interest in the case of Chesterton v Nurmohamed in October 2016. In the meantime, the rulings emphasise the importance of having good documentary evidence of the real reason for dismissals (or other detrimental treatment), in order to rebut suggestions that the reason is actually retaliation for raising complaints (whether or not these amount to protected disclosures). Employers should bear in mind that employees raising concerns could be protected under whistleblowing legislation, even if the complaint appears only to concern the individual. If a claim is brought, strike out is unlikely to be a realistic option.