Whistleblowing and the Public Interest – Guideline EAT Ruling

Workplace disclosures of information can only qualify for whistleblowing protection if they are made in the public interest – but what exactly does that mean? Guidance on that issue was given in an important Employment Appeal Tribunal (EAT) ruling.

Whilst working for a law firm as a consultant, a solicitor made disclosures in the form of emails in which he expressed the view that a client was being overcharged. After his consultancy was terminated, he complained to an Employment Tribunal (ET) that he had been subjected to detriments for making protected disclosures.

The ET accepted that he had disclosed information that he believed indicated that the client had been overcharged. He also believed that the information tended to show that the firm had breached its contractual obligations to the client. Both beliefs were reasonably held. However, his claim was rejected on the basis that he did not reasonably believe that the disclosures were in the public interest.

Ruling on his challenge to that outcome, the EAT noted that the ET made no finding that the firm had in fact overcharged its client. The truth or otherwise of the allegation was irrelevant to the question of what the man reasonably believed.

Upholding his appeal, the EAT noted that solicitors, as officers of the court, are held to high standards of honesty and integrity and that overcharging a client may raise professional regulatory issues. The ET had applied the wrong legal test in finding that the disclosures contained no public interest element and related solely to the private contractual relationship between the firm and its client.

The EAT emphasised that a disclosure of information relevant only to one person – in this case a single client – may nevertheless be a matter of public interest. The ET had also erred in failing to ask itself whether the disclosures had a material influence on the decision to terminate the man’s consultancy. His complaint was sent back for fresh consideration by a differently constituted ET.