Whistleblowing: Public Interest Test

A claimant must have the opportunity to give direct evidence about whether they had a subjective belief that they were acting in the public interest when making a whistleblowing disclosure.

THE FACTS

To be protected by the whistleblowing legislation, a worker must have made a "qualifying disclosure". This is 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 a list of acts of wrongdoing. This list includes a concern that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject.

As we reported here previously, Mr Ibrahim was an interpreter in a private hospital. He asked his manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality so that he could "clear his name". He also complained that colleagues had been slandering him. After investigation, his complaint was rejected. He was later dismissed and claimed (among other things) that his complaint had been a whistleblowing allegation, and that he had been dismissed for having made the complaint.

The employment tribunal dismissed his whistleblowing claim. One of the grounds for doing so was that his disclosures were not made in the public interest: Mr Ibrahim had made the complaint with a view to clearing his name and re-stablishing his reputation. Mr Ibrahim appealed to the EAT which held that the tribunal had permissibly concluded, as a matter of fact, that Mr Ibrahim did not have a subjective belief that his complaint was in the public interest and that he was not therefore protected as a whistleblower.

Mr Ibrahim appealed to the Court of Appeal on the ground that the tribunal had not applied the correct two stages of the public interest test, which is a) whether the claimant genuinely believed, at the time of making a disclosure, that it was in the public interest and b) if so, whether that the belief was reasonable. This two-stage test was set out for the first time in the case of Chesterton Global Ltd v Nurmohamed, which was handed down by the Court of Appeal after the...