Reasonable belief and whistleblowing claims

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Background to reasonable belief in the public interest

The public interest test was introduced as an additional requirement for whistleblowing protection in 2013. In order to be considered a protected disclosure, and benefit from protection under the whistleblowing legislation, the worker blowing the whistle must reasonably believe that his/her disclosure is in the public interest. This test was considered by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v. Nurmohamed. Essentially, the court concluded that even if the public interest is not the worker’s predominant (or any part of their) motive for making a disclosure, he or she can still be protected. This case also made it clear that disclosures relating to a worker’s own contract could still potentially be protected.

Okwu

This was precisely the type of disclosure that was in dispute in Okwu v. Rise Community Action. Ms Okwu was employed by Rise, a charity which provided support for victims of domestic violence and female genital mutilation. Her probationary period had been extended following a performance review in which a number of issues regarding her work were raised. Subsequently, Ms Okwu submitted a letter complaining of various problems she felt were unaddressed within the organisation. These included the fact that she had to use a shared mobile phone for dealing with clients and the lack of secure file storage available at the organisation. She claimed that these points were in breach of data protection legislation, given the sensitive nature of the client information that she regularly dealt with as part of her work.

Following submission of this letter, the charity dismissed Ms Okwu. The reasons they gave for the dismissal were her poor performance and the fact that she had "demonstrated [her] contempt for the charity" by sending the letter.

The employment tribunal dismissed her claim for unfair dismissal on whistleblowing grounds, stating that, as the letter raised only "personal contractual matters" that did not relate to anyone but her, the disclosure did not have sufficient public interest.

However, on appeal, the EAT held that the tribunal had erred in its application of the public interest test. It held that even if the disclosure had been made by Ms Okwu in response to the performance issues that had been raised, this did not mean that she could not also have a reasonable belief that the disclosure was in the public interest. Following Chesterton, the EAT noted that motivation was irrelevant and what counted was whether they reasonably believed there was a public interest to their disclosure. Given the sensitive nature of the information involved in this case, the EAT sent the case back to the tribunal to reconsider whether Ms Okwu had such a reasonable belief.

Comment

Following this decision, employers should be alive to the possibility that employees may be protected by whistleblower protections, even where the disclosure is made in defence of their own position. The public interest test is satisfied if the employee can show that they had a reasonable belief that their disclosure was in the public interest, irrespective of their actual intention for making it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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