The public interest test





For a disclosure to be protected, the worker must reasonably believe it to be “in the public interest” (section 43B, ERA 96). This public interest test was added to the law in 2013 (section 17, Enterprise and Regulatory Reform Act 2013). 


The Court of Appeal (CA) has said that the phrase “public interest” must be given a wide meaning so as to support the aim of the legislation, which is to provide protection to whistleblowers. In Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 314, the CA said that the task of the tribunal is to assess whether the worker genuinely and reasonably believed their disclosure to be in the public interest when they made it. The tribunal must not substitute its own view as to the “reasonableness” of that belief for that of the worker. To do so would be a mistake of law.


The public interest need not be the worker’s main motive, as long as it is one motive. A disclosure about your own contract terms, or about some other issue that affects your private interests (or the private interests of co-workers) can also be in the wider “public interest”. A good example would be a dispute over workplace health and safety (Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA). A disclosure that is driven purely by self-interest will not be protected (Parsons v Airplus International Limited [2018] UKEAT/0111/17). 



It is not for the employer to decide whether an employee is motivated by a public interest. This is a decision for the tribunal (Beatt v Croydon Health Services v NHS Trust [2017] EWCA Civ 401). 


The Court of Appeal has identified the following factors that might help work out whether a worker genuinely believed their disclosure to be in the public interest, although as always, the assessment depends on all the circumstances: 



• how many people were affected by the alleged wrongdoing, how, and how seriously; 



• the type of wrongdoing (for example, revealing deliberate wrongdoing is more likely to be in the public interest than revealing a mistake); and 



• the alleged wrongdoer’s identity. 



As long as a worker reasonably believed their disclosure to be in the public interest, there is protection even the worker was motivated by bad faith or malice. However, tribunals can reduce compensation by up to 25% if the disclosure was not made in good faith.