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Whistleblowing and the Public Interest Test

The Employment Appeal Tribunal (“EAT”) recently held in Okwu v Rise Community Action that a tribunal had misapplied the public interest test in a protected disclosure case.

Since 25 June 2013, a disclosure can only be a qualifying disclosure if the worker reasonably believes that the disclosure is "in the public interest".

In this case, Ms Okwu was employed by a charity and his role involved providing support to victims of domestic violence. After reviewing Ms Okwu’s performance during her probationary period, the charity decided to extend her probationary period to enable it to asses her suitability.

In response to her probationary period being extended Ms Okwu submitted a letter to the charity complaining about numerous issues. These issues included; a lack of pension or written statement of terms, lack of internet access, the fact that she had to use a shared mobile phone for dealing with clients and the lack of secure file storage. The final two complaints were states as breaches of the Data Protection Act 1998, given the sensitive nature of her work.

Following receipt of Ms Okwu’s letter the charity’s management committee decided to terminate her employment. The charity determined it was satisfied that she was not prepared to take reasonable instructions from it in respect of performance issues that had already been identified and the decision was compounded by Ms Okwu’s letter the content of which the charity held demonstrated her contempt for the charity, its work and its client group. The termination letter was sent to Ms Okwu 7 days after her letter to the charity and set out 11 examples of poor work performance and/or misconduct.

The first instance tribunal dismissed her claim for unfair dismissal on whistleblowing grounds as it held that her letter concerned "personal contractual matters" which "related to her and nobody else" and did not have sufficient public interest.

Ms Okwu appealed to the EAT who held that the tribunal had misapplied the public interest test in relation to the shared mobile phone and file storage issues. The EAT found that even though her letter had been raised in defence of her performance, this did not mean that she could not reasonably believe them to be in the public interest. In accordance, with previous case, the EAT held that public interest does not need to be an employee’s only motivation and it was hard to see how these matters would not, in Ms Okwu's reasonable belief, be in the public interest.

This decision serves as a reminder that disclosures which on the face of it seem to relate to personal issues can also satisfy the public interest test if the employee or worker reasonably believes that the disclosure is in the public interest. Further, public interest does not need to be an employee’s sole motivation when making their disclosure.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.