UK: whistleblowing disclosure related to one client could be "in the public interest" in a regulated sector

A whistleblower will only be protected from detriment or unfair dismissal if they can show that they reasonably believed they were making the disclosure "in the public interest".  The ruling in Dobbie v Paul Felton t/a Felton Solicitors highlights that this test may be met even where the disclosure is of wrongdoing in relation to only one client, if the employer is in a regulated sector and the wrongdoing could be a breach of regulatory requirements.

The Court of Appeal in Chesterton set out four relevant considerations in determining public interest:

• the number of individuals whose interests were served by the disclosure;
• the nature of the affected interests and the extent to which they are affected;
• the nature of the wrongdoing disclosed; and
• the identity of the wrongdoer.

The claimant in Dobbie made a disclosure to his employer that a client was being overcharged, motivated primarily by a desire to protect the client's interests. The tribunal had concluded that this was a private matter between the client and the firm, focusing on the first Chesterton consideration, and that the claimant could not have reasonably believed it was a matter of public interest.

The EAT disagreed: the tribunal had limited its reasoning only to the number of individuals directly affected without considering the other Chesterton factors and whether the disclosure could have a broader protective purpose in the regulatory context.  It had wrongly required there to be a group that is likely to be protected for there to be a reasonable belief that the disclosure is made in the public interest.

A disclosure of information that tended to show the firm was overcharging the client, in breach of the Solicitors Accounts Rules or other regulatory obligations, would be expected to raise matters of public interest because the regulations are there to protect the public. The fact that the respondent was a firm of solicitors meant that, in the public interest, it was subject to high requirements of honesty and integrity. There is a general public interest in solicitors' clients not being overcharged and solicitors complying with their regulatory requirements.  If the claimant held a genuine belief that his disclosures were in the public interest in this way, that was sufficient and it did not have to be his predominant motive in making them. The case was remitted to the tribunal to reconsider.

The judge also noted that a matter that is of ‘public interest’ is not necessarily the same as one that interests the public, and a disclosure could be made in the public interest although the public will never know that the disclosure was made and even if it is about a specific incident without any likelihood of repetition. However, if the aim of making the disclosure is to damage the public interest, for example by highlighting misconduct so that it can be covered up, it is hard to see how it could be protected.