Whistleblowing: reasonable belief in public interest?

Alastair Currie looks at the question of when it could be said that an employee’s belief that a disclosure is in the public interest is reasonable within the meaning of whistleblowing legislation.

In a whistleblowing case which came before it in June, the Employment Appeal Tribunal found that the first instance tribunal had erred when it considered whether information provided by an employee was true, rather than whether it was the employee’s reasonable belief that the disclosure was made in the public interest.

The case of Okwu v Rise Community Action involved a small charity who provided support for individuals affected by, or victims of, domestic violence, female genital mutilation or HIV. The claimant was employed as a domestic violence and female genital mutilation specialist  who, following concerns over performance, had her probationary period extended by a further three months. Shortly thereafter, the claimant raised a number of her own concerns, including an alleged protected disclosure that the respondent was in breach of the Data Protection Act by not providing her with secure storage facilities or a mobile phone given that she was dealing with sensitive and personal information.

The ET dismissed the claimant’s automatic unfair dismissal claim due to a protected disclosure on the basis that:

(a) The matters raised by the claimant were not in the public interest but concerned her own contractual position;
(b) The information about the concerns lacked sufficient detail to amount to a qualifying disclosure; and
(c) In any event the claimant was dismissed due to genuine concerns over her performance and not for her complaints relating to her personal contractual position.

The EAT, however, upheld the claimant’s appeal on two out of the three grounds and remitted the decision back to the ET for consideration. The following were the two grounds upheld.

Firstly, the EAT held that the ET had failed to explain its reasoning, or in the alternative had applied the wrong test, as to whether it was a public interest disclosure. The Tribunal should have asked whether the claimant had a reasonable belief that her disclosure had been in the public interest and the fact that it concerned sensitive information begged the question of how could the claimant not have held such reasonable belief.

Secondly, the EAT found that the ET had failed to engage with the need to determine the genuine reason for the claimant’s dismissal and did not give due regard to the claimant’s assertion that the decision was taken in response to her disclosure letter.

Whilst Miss Okwu won her appeal, she must still persuade the ET that her dismissal was unlawful as the ET will again consider whether the principal reason for the dismissal was because of her protected disclosure.

What does this mean in practice?

Where an employee is bringing a claim for unfair dismissal based on a protected disclosure, the burden of proof falls on the employee to show that they (a) made a protected disclosure and that (b) that protected disclosure (“whistleblowing”) was the reason or principal reason for their dismissal.

The principle of a worker’s reasonable belief in the public interest concerns point (a) of the above test and derives from section 43B ERA where it is stated that “a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest…”.

The test of what amounts to a ‘reasonable belief’ is both an objective and subjective one. The belief must be objectively reasonable AND the worker must have held a genuine belief that the disclosure was in the public interest. The Tribunal is not required, and it does not form part of the test, to assess whether the disclosure was objectively made in the public interest. It is a matter of reasonable belief at the time. Rather frustratingly for employers, it therefore means that the public interest test can be satisfied even where the factual basis of the disclosure is false, or where there is in fact no public interest in the disclosure being made, as long as the worker believes that the disclosure made was in the public interest and that belief was objectively reasonable.

It would be prudent, therefore, for an employer to be mindful of the following:

  • If a complaint or grievance is received, automatically consider whether it could amount to a “protected disclosure” and bear in mind the employee’s subjective beliefs.
  • If it is, or could be, deemed a “protected disclosure” ensure that it is investigated thoroughly in accordance with any whistleblowing and/or grievance policies.
  • In the event that a complaint is:

- not upheld, ensure that the worker is not treated unfairly as a result. If, however, you deem that the complaint was made maliciously, or not ‘in good faith’, then disciplinary action may be taken. However it would be wise to take legal advice before doing so.
- upheld, there must be affirmative action against any wrongdoer, including reporting the matter to a regulatory authority, to be able to show if required that the complaint was dealt with properly and given due attention.

Alastair Currie is a partner at Bevan Brittan. He can be contacted on 0370 194 7893 or This email address is being protected from spambots. You need JavaScript enabled to view it..