Under S.43B (1) of the Employment Rights Act 1996, to qualify for whistleblowing protection, a disclosure made on or after 25 June 2013 has to be in the “public Interest”. This amendment was designed to reverse the EAT’s ruling in Parkins v Sodexho Ltd, that the definition of a qualifying disclosure was broad enough to cover a breach of the whistleblower’s own contract of employment. In two subsequent EAT decisions, Chesterton Global Ltd v Nurmohamed and Underwood v Wincanton plc, the EAT held that for a disclosure to be in the “public interest” it is not necessary to show that a disclosure was of interest to the public as a whole, and the test can be satisfied where the alleged wrongdoing impacts on the terms and conditions of a smaller group of other workers.

In Morgan v Royal Mencap Society, Ms Morgan (M) claimed automatically unfair dismissal and detriment for making public interest disclosures. M argued that she had done a protected act by raising health and safety concerns with her manager about her cramped working area adversely affecting her her post fracture knee injury and lower back and then putting her health and safety concerns in writing. In the additional particulars M supplied to the tribunal she stated that she thought the public would be shocked to know the working conditions she was subjected to after breaking her knee while at work. She added that the public ought to know about Charities who behave in this manner and her complaint was made in the public interest as the subject matter also presents a threat to the health and safety of others.

At a preliminary hearing, and without hearing any oral evidence from M, the Employment Judge (EJ) struck out her claims. The EJ decided that the disclosures were in effect complaints about the conditions in which M was being required to work. She asserted a belief that they represented a danger to her health and safety, and although the EJ accepted that these matters were highly relevant to her, he concluded that they were not a matter of public interest and could not be so even in M’s reasonable belief.

The EAT upheld M’s appeal. The EJ was wrong to strike out the claims without hearing any evidence from M. It is reasonably arguable that M, even if she is the principal person affected, reasonably believed the complaints she made to have been in the wider interests of employees generally, or in the wider public interest she had identified. Whether that is so is a question of fact. Accordingly, there was the possibility that when the evidence is heard, M’s disclosures may meet the public interest test so the case would be remitted for a full hearing before a different EJ.

The Court of Appeal is due to hear the appeal in the Chesterton case, but in the meantime it appears that the EAT is consistently applying a low threshold for the public interest test by adopting the approach that the disclosure does not have to be of interest to the public as a whole, and can be satisfied where a small group of workers, or others, are adversely affected.

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