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International Journal of Law and Management
Is a public interest test for workplace whistleblowing in society’s interest?
David Lewis
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David Lewis , (2015),"Is a public interest test for workplace whistleblowing in society’s interest?",
International Journal of Law and Management, Vol. 57 Iss 2 pp. 141 - 158
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Is a public interest test for
workplace whistleblowing in
society’s interest?
David Lewis
Workplace
whistleblowing
141
Law School, Middlesex University, London, UK
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Received 8 October 2014
Revised 8 October 2014
Accepted 8 October 2014
Abstract
Purpose – The aim of the paper is to consider the efficacy of requiring a public interest test to be
satisfied before protection is afforded to workers who blow the whistle under Part IVA of the
Employment Rights Act 1996 (ERA 1996).
Design/methodology/approach – Not all definitions of whistleblowing require there to be a public
interest in the disclosure of information. To illustrate how the expression “public interest” has been used
in this context, the common law defence to an action for breach of confidence is outlined. The paper then
explains how the concept of “public interest whistleblowing” evolved in other jurisdictions. It also
examines the jurisprudence of the European Court of Human Rights to see if it helps us to apply the
public interest test. Finally, this test is considered in the context of UK legislation.
Findings – Several sources of uncertainty are identified. These include the fact that personal and
public interest matters may be intertwined and that an organization may encourage the internal
reporting of concerns about wrongdoing that do not have a public dimension to further its private
interests. One obvious result of uncertainty is that those who are not legally required to report
wrongdoing may choose not to do so and society may be denied important information; for example,
about serious health and safety risks or financial scandals.
Originality/value – It is suggested that the public interest test should be removed from Part IVA
ERA 1996. However, this test is likely to remain for a while, so nine recommendations about how it
should be interpreted are made.
Keywords Interest, Whistleblowing, Public
Paper type Research paper
Introduction
A prime attraction of using the words “public interest” in the context of legal rights or
defences is that their meaning can be determined by judges in a variety of factual
situations. Equally, a major disadvantage for potential litigants is that they may not
know in advance with sufficient certainty how the term will be applied. Case law may
provide some indication as to when a public interest test is likely to be satisfied, but it
may not be authoritative enough to enable advisers to determine whether a particular
claim is likely to succeed or fail.
What follows is written on the premise that most people do not have a statutory or
contractual duty to disclose wrongdoing (Lewis, 2011), and thus need to be encouraged
to do so. This could be achieved by employers having a policy that invites the reporting of
concerns, a procedure that facilitates this, together with undertakings that whistleblowers
will be protected against victimization if they act honestly. Unfortunately, UK legislation
does not oblige employers to have such arrangements in place and, despite the fact that these
are desirable as a matter of self-interest[1], many do not do so. Where detailed policies and
International Journal of Law and
Management
Vol. 57 No. 2, 2015
pp. 141-158
© Emerald Group Publishing Limited
1754-243X
DOI 10.1108/IJLMA-10-2014-0056
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142
procedures do exist, they often require whistleblowers to act in good faith and/or not
knowingly provide false information but make no mention of the public interest. This is
hardly surprising given that, even in the public sector, information about wrongdoing is
being sought primarily to serve the employer’s interest in efficiency, good governance,
etc. Indeed, in the private sector, shareholders may well point out that, apart from the
need to abide by the law, the public interest is of no relevance to them unless serving it
has the effect of maintaining or increasing the value of their stock. Thus, the question
arises as to the efficacy of requiring a public interest test to be satisfied before protection
is afforded to workers under Part IVA ERA 1996. If such a test deters some disclosures
of serious wrongdoing, it might be argued that it is in society’s interest that it is
removed.
To illustrate how the expression “public interest” has been used in the context of
whistleblowing, we will start by outlining the common law defence to an action for breach of
confidence. Next, we explain how the concept of “public interest whistleblowing” evolved in
Australia and how it manifested itself in legislation in that country and elsewhere. We
then examine the jurisprudence of the European Court of Human Rights (ECHR) to see
if it helps us to apply the public interest test. Finally, we consider this test in the context
of UK statutes dealing with both the concealment and disclosure of information. We
conclude by arguing that to create more certainty about when statutory protection will
be afforded, the public interest test should be removed from Part IVA Employment
Rights Act 1996. At the very least, it should not be a condition for protecting those who
disclose information internally or to regulators. Realistically, however, the public
interest test is likely to remain in place for a while, so it is recommended that a code of
practice or guidance document is produced and suggestions are made about some of the
issues that should be dealt with.
Breach of confidentiality at common law and the impact of the Human
Rights Act 1998
Since Initial Services v. Putterill [1968] 1 QB 396, the law has allowed an exception to the
principle of non-disclosure of confidential information where there is “any
misconduct of such a nature that it ought in the public interest to be disclosed to
others”. Thus, in Lion Laboratories Ltd v. Evans [1985] QB 526, two employees gave
a national newspaper copies of internal documents doubting the reliability of the
breathalysers manufactured by their employer. The company sought an injunction
to prevent publication of the information on the grounds of breach of confidence.
However, the action failed because the employees were found to have “just cause or
excuse” for disclosure. Subsequently, in Re a Company’s Application [1989] IRLR
477, the High Court refused to grant an injunction preventing an employee in the
financial services sector from disclosing confidential information about his
company to a regulatory body, notwithstanding that the disclosure might be
motivated by malice. Justice Scott held that an employee’s duty of confidence did not
prevent him or her disclosing to regulatory authorities matters, which it was within
the province of those authorities to investigate.
In essence, the public interest was used by the common law as a shield in actions for
breach of contract. Apart from the Official Secrets Act, which does not allow a public
interest defence[2], it was clear that, irrespective of a person’s motive, external
disclosures of serious wrongdoing would not constitute a breach of confidence if
they were made to an appropriate regulatory body. However, there was uncertainty
about what amounted to serious wrongdoing and when disclosures could be made to
the media. Indeed, in 1990, Gunmow described the situation as follows: “the
so-called “public interest” defence is not so much a rule of law as an invitation to
judicial idiosyncrasy[3]”. Today, the task of balancing a private interest in
maintaining confidentiality against the public interest in the disclosure of
wrongdoing is undertaken in the context of the Human Rights Act 1998 (HRA 1998).
According to Section 3(1) HRA 1998:
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So far as it is possible to do so, primary legislation and subordinate legislation must be read
and given effect in a way which is compatible with the Convention rights[4]’.
In addition, Section 6 (1) makes it unlawful for tribunals and courts to “act in a way
which is incompatible with a Convention right”. In the author’s view, these provisions
require courts and tribunals to have freedom of speech as the starting point both in
common law actions and in the assertion of statutory rights.
Nevertheless, as we will see below, the notion of proportionality applied by the ECHR
sheds little light on how the public interest test in Part IVA ERA 1996 might operate.
These whistleblowing provisions originally gave workers a sword with which to claim
compensation for detrimental treatment and the types of wrongdoing covered, and the
appropriate recipients of concerns were specified. No additional public interest test had
to be satisfied, although good faith was required[5]. However, the statute was amended
in 2013 to incorporate a public interest test as a condition for protection and relegated good
faith to a matter relevant only to the amount of compensation awarded[6]. Before examining
Part IVA ERA 1996 in detail, we will discuss the emergence of the concept of “public interest
whistleblowing” in overseas legislation and the principle of proportionality enshrined in the
European Convention on Human Rights.
The evolution of the concept of “public interest whistleblowing”
In 1972, the late Ralph Nader defined whistleblowing as:
[…] an act of a man or a woman who in believing the public interest overrides the organization
he serves, and publicly blows the whistle if the organization is involved in corrupt, illegal,
fraudulent or harmful activity.
Having received a variety of submissions, the Australian Senate Select Committee on
Public Interest Whistleblowing settled on the following definition:
[…] the whistleblower is a concerned citizen, totally or predominantly motivated by notions of
public interest, who initiates of his or her own free will, an open disclosure about significant
wrongdoing directly perceived in a particular occupational role, to a person or agency capable
of investigating the complaint and facilitating the correction of wrongdoing[7].
The use of the term “public interest whistleblowing” in Australia is hardly surprising
because, apart from South Australia, all the relevant state and federal legislation applies
only to the public sector[8].
In 2005, the International Labour Organisation described whistleblowing as “the
reporting by employees or former employees of illegal, irregular, dangerous or unethical
practices by employers[9]”. In 2013, Transparency International adopted the following
definition:
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[…] the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities
(including perceived or potential wrongdoing) being committed in or by public or private
sector organisations – which are of concern to or threaten the public interest - to individuals or
entities believed to be able to effect action (Transparency International, 2013).
More recently, the Council of Europe Recommendation on Protecting Whistleblowers
defined a whistleblower as “any person who reports or discloses information on a threat
or harm to the public interest in the context of their work-based relationship, whether
private or public”. “Concerned individuals who sound an alarm in order to stop
wrongdoings that place fellow human beings at risk”. The same document defines a
public interest report or disclosure as “reporting or disclosing of information on acts and
omissions that represent a threat or harm to the public interest[10]”. However, the
definition most commonly used for research purposes is the following:
[…] the disclosure by organisation members (former or current) of illegal, immoral or
illegitimate practices under the control of their employers, to persons or organisations that
may be able to effect action (Near and Miceli, 1985).
It can be seen that some of these definitions are broader than others (Lewis et al., 2014),
but what is relevant for our purposes is that not all of them require there to be a public
interest in disclosure.
Given that Miceli and Near’s definition had been used widely by scholars, it seemed that
the researchers on the Australian Whistling While They Work project were narrowing the
scope of their enquiries in focusing only on public interest whistleblowing “in which the
issues disclosed raise public interest matters in addition or as opposed to those that
involve simply a personal or private complaint” (Brown, 2008). However, their report
acknowledges that this distinction can be difficult to draw in practice because many
allegations of wrongdoing involve a personal grievance and also matters of
organizational or public integrity. For example, whether or not a worker realizes it, a
personal grievance could be indicative of a larger breakdown in organizational
procedures: “Some workplace grievances, particularly those involving management,
can become so endemic and destructive that they also become a public interest issue”
(Roberts et al., 2011). Similarly, a worker could be aware about a matter of serious public
interest, but disclose it only after a personal grievance arises (whether or not related to
the public interest matter). Thirdly, it was accepted that a worker could raise a matter of
public interest but receive a response that gives rise to a personal grievance. The
frequency with which public interest concerns are mixed with personal conflicts was
confirmed by responses to the surveys conducted during the project: “In practice,
reporters of wrongdoing do not make this distinction between grievances and public
interest matters” (Roberts et al., 2011, p. 57). Thus the authors state:
[…] it is important that organizational systems recognize the degree to which personal and
public interest matters are intertwined, otherwise issues of public interest can get overlooked
and employees may be left subject to reprisals simply because personal interests are also
involved (Brown, 2008).
This recognition of the interplay between public and personal interests at the workplace is
also crucial in the UK context. Thus, in opposing an amendment to the Enterprise and
Regulatory Reform Bill 2012, which would have prevented breaches of contracts of
employment from amounting to a qualifying disclosure under Section 43B ERA 1996, a
Minister stated:
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Therefore there is no need to disallow claims based on an individual’s contract, as suggested in
the amendment. Indeed, although our aim is to prevent the opportunistic use of breaches of an
individual’s contract that are of a personal nature, there are also likely to be instances where a
worker should be able to rely on breaches of his own contract where those engage wider public
interest issues. In other words, in a worker’s complaint about a breach of their contract, the
breach in itself might have wider public interest implications[11].
Workplace
whistleblowing
We discuss the current legislation in the UK below, but before doing so, we will outline
how the public interest has manifested itself in some other jurisdictions.
145
The meaning of public interest in Australian, New Zealand and
Norwegian whistleblowing legislation
As mentioned above, with the exception of one state, Australian whistleblowing
legislation only covers the public sector. Early statutes equated public interest
disclosures with the reporting of limited types of improper conduct by public officers to
a narrow range of appropriate recipients. Subsequently, the types of reportable conduct
have been extended as have the range of appropriate recipients and the acceptable
methods of disclosure. Some states do not mention the public interest as such but focus
on the conduct of public officers and bodies, for example, Tasmania[12]. A more recent
example is Victoria’s Protected Disclosures Act 2012, Section 1, of which states that its
purposes are:
[…] (a) to encourage and facilitate disclosures of (i) improper conduct by public officers, public
bodies and other persons; and (ii) detrimental action taken in reprisal for a person making a
disclosure under this Act.
By way of contrast, several Australian states expressly refer to the public interest. For
example, South Australia[13], New South Wales[14] and Queensland[15]. More recently, the
Australian Capital Territory’s Public Interest Disclosure Act 2012 states that it is “an Act to
facilitate public interest disclosures and protect people making those disclosures, and for
other purposes” and Section 7 spells out the meaning of public interest disclosure[16].
Similarly, Section 26 of the Federal Public Interest Disclosure Act 2013, which describes
itself as “an Act to facilitate disclosure and investigation of wrongdoing and
maladministration in the Commonwealth public sector, and for other purposes’ defines a
public interest disclosure[17]”. Finally, a variation on this theme is seen in Western
Australia’s Public Interest Disclosure Act 2003 and the Northern Territory’s Public Interest
Disclosure Act 2008, which are built around the notion of “public interest information[18]”.
Unlike most of the Australian legislation, New Zealand’s Protected Disclosures Act 2000
aims to promote the public interest by facilitating disclosures of serious wrongdoing in both
the public and private sectors[19]. In Norway, various duties to notify are imposed by Section
2(3) of the Work Environment Act 2005 and Section 2(4) gives employees in the public and
private sectors “a right to notify concerning censurable conditions at the undertaking”. No
mention is made of the public interest other than as a consideration to be taken into account
in assessing the validity of an external disclosure.
Does ECHR jurisprudence help us to interpret the meaning of public
interest whistleblowing?
Freedom of speech is intrinsically valuable as a mode of self-fulfilment, but it is also
instrumentally important. Information and ideas are critical to the creation of citizens
who are capable of participating, and the health of democratic societies depend on this
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being achieved (Marshall. 1968). Indeed a person’s ability to freely report suspicions
may deter others from engaging in wrongdoing. Thus, whistleblowing can be regarded
as an aspect of citizenship and promoting and protecting it is a public good. On this
basis, we can see why Article 10 of the European Convention on Human Rights applies
to all citizens and might wonder why the protection of whistleblowers in the UK
is confined to workers[20]. Article 10, which applies to both the public and private sectors,
states that:
• Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers […].
• The exercise of these freedoms, as it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties, as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or the rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary[21].
To assess the potential impact of the public interest test in the UK’s whistleblowing
legislation, it seems appropriate to examine how the ECHR has interpreted Article 10.
However, it should be noted that the words “public interest” are not used in formulating
the right. Nevertheless, the public interest has been referred to in the ECHR case law as
a factor relevant to determining whether a restriction was “necessary in a democratic
society”. In Stoll v. Switzerland [2007] 47 EHRR 1270, the ECHR was not persuaded that
the disclosure of aspects of the strategy to be adopted by the Swiss Government in the
negotiations concerning the assets of Holocaust victims and Switzerland’s role in the
Second World War was prejudicing interests that were so important that they
outweighed freedom of expression in a democratic society.
It is important to note here that the public interest considerations were taken into
account in the context of press freedom, which was regarded as being “too fundamental
a right to be made subservient as a matter of principle to the interests of the state”. As the
ECHR has acknowledged that exceptions to freedom of expression must be strictly
construed, we would expect that it would take a robust approach in whistleblowing
cases.
In Guja v. Moldova [2008] ECHR 14277/04, an employee of the Prosecutor General’s
office was sacked for leaking official letters to the press demonstrating political
interference in ongoing investigations. The ECHR accepted that the defendant had the
legitimate aim of preventing the disclosure of information received in confidence, and
thus had to consider whether there was a proportionate relationship between the
interference suffered and the aim pursued. In discussing the general principles
applicable, reference was made to the duty of loyalty, reserve and discretion owed by an
employee to his or her employer. This will almost inevitably be breached where a
whistleblower makes an external disclosure. Interestingly, no mention was made of
loyalties that might be owed to others, for example, a family, work colleagues, friends or
society generally (Lewis, 2011). However, it was accepted that it will be particularly
important to afford protection where the individual is the only person or one of a small
group aware of what is happening at work. In assessing proportionality, the duty of
loyalty was used as the basis for arguing that public disclosures should be a last resort
but the ECHR thought that attention should be paid to a number of other factors. First,
“the public interest involved in the disclosed information”. Second is the authenticity of
the information: “any person who chooses to disclose information must carefully verify,
to the extent permitted by the circumstances, that it is accurate and reliable”. Third, the
motives behind the employee’s actions are relevant:
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[…] it is important to establish that the individual acted in good faith and in the belief that the
information was true, that it was in the public interest to disclose it and that no other, more
discreet means of remedying the wrongdoing was available to him or her.
Finally, the ECHR must determine whether any damage suffered outweighed the public
interest in having the information revealed. In this respect, the subject matter of the
disclosure and the identity of the defendant may be relevant.
In the subsequent case of Heinisch v. Germany [2011] IRLR 922, the applicant was
dismissed after heavily criticizing and filing a criminal complaint against her
state-owned employer (which provided services for the elderly), alleging deficiencies in
care resulting from staff shortages. The ECHR accepted that the interference with the
right to freedom of expression was “prescribed by law” and there was no dispute that the
interference pursued the legitimate aim of protecting the reputation and rights of others,
i.e. the business interests of her employer. Thus, what had to be decided was whether
there was a proportionate relationship between the interference and the aim pursued.
The ECHR reiterated that the nature and extent of the employees’ duty of loyalty
impacted on the balancing of the conflicting rights and interests of the parties. However,
it was pointed out that if the employer fails to deal with an illegal practice brought to its
attention, an employee is no longer bound by this duty. Another dimension in this case
was that a failure to report deficiencies in the care provided would have rendered
Heinisch liable to criminal proceedings. Although the ECHR confirmed that “there is an
interest in protecting the commercial success and viability of companies”, it
nevertheless concluded that:
[…] the public interest in having information about shortcomings in the provision of
institutional care for the elderly by a State-owned company is so important in a democratic
society that it outweighs the interest in protecting the latter’s business reputation and
interests.
Unfortunately the factors regarded by the ECHR as being relevant to the defence that
restrictions on freedom of speech are “necessary in a democratic society” do not shed
light on the meaning of “public interest”. Indeed, the public interest is itself treated as a
factor! More broadly, there are good reasons for not relying on most of the matters
discussed by the ECHR in relation to the test of proportionality. First, it can be argued
that, from an ethical perspective, loyalty is not owed solely to an employer[22] and that
the legal obligation not to disclose information is removed if the employer is aware of
serious wrongdoing but ignores it[23]. Second, in relation to what the ECHR refers to as
“authenticity”, it is the function of whistleblowers to report honest suspicions about
wrongdoing and they should not be required to obtain evidence before reporting it. It is
the task of the recipient to investigate[24] and check whether the material disclosed is
accurate and reliable. Third, many believe that the motives of a whistleblower are
irrelevant and that it is in the public interest that attention focuses solely on the message
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being conveyed rather than whether it was disclosed in good or bad faith (Lewis, 2008).
The subject matter of the disclosure and to whom it is made have also been identified by
the ECHR as relevant factors. However, these are both dealt with as separate issues in
Part IVA ERA, and thus, at least in theory, should not be used again as part of the public
interest test.
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Learning from the public interest test in data protection and freedom of
information legislation
Data Protection Act 1998 (DPA 1998)
Unlike Part IVA ERA 1996, which focuses on disclosures of information, the DPA 1998
provides protection to individuals in relation to the processing and movement of
personal data. It is relevant here as it deals with privacy issues and their relationship
with freedom of expression. Under the DPA 1998, the media will be treated as data
controllers and Section 32(1) provides that all the Data Principles (except Principle 7) are
disapplied if:
[…] (a) the processing is undertaken with a view to the publication by any person of any
journalistic, literary or artistic material, (b) the data controller reasonably believes that, having
regard in particular to the special importance of the public interest in freedom of expression,
publication would be in the public interest […].
Section 32(3) goes on to state that:
In considering […] whether the belief of a data controller that publication would be in the
public interest was or is a reasonable one, regard may be had to his compliance with any code
of practice which – (a) is relevant to the publication in question, and (b) is designated by the
Secretary of State.
As this test of reasonable belief in the public interest is the same as that contained in
Section 43B ERA 1996 in relation to qualifying disclosures, it seems appropriate to see
if such codes provide meaningful guidance as to how a reasonable belief might be
demonstrated.
To date, five codes have been designated in the Schedule to the Data Protection
(Designated Codes of Practice) (No. 2) Order 2000[25]. Some of these are very detailed
and focus on obvious topics like protecting minors, crime, religion, elections, privacy
and impartiality. The OFCOM (formerly Broadcasting Standards Commission) Code
contains both principles and rules, and the public interest is mentioned in relation to the
payment to criminals for programme contributions, withholding information to
contributors, unjustified public ridicule or personal distress. In relation to infringements
of privacy, Rule 8.1 states that “Any infringement of privacy in programmes, or in
connection with obtaining material included in programmes, must be warranted” and
Rule 8.13 provides that surreptitious filming or recording is only warranted “if there is
prima facie evidence of a story in the public interest”.
The Press Complaints Commission Editors’ Code ends with a note about the public
interest which includes the following:
Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that
they reasonably believed that publication, or journalistic activity undertaken with a view to
publication, would be in the public interest and how, and with whom, that was established at
the time.
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This raises an interesting question in relation to section 43B ERA 1996. If the burden of
establishing a reasonable belief is on a worker asserting the right not to suffer a
detriment, should an employment tribunal ask how such belief materialized and
whether the worker sought the views of others? Clearly, a belief can only be reasonable
if there are some grounds for it, but the requirement to get confirmation from others
might penalize those whistleblowers who choose to act alone to safeguard themselves
and others. Finally, it should be noted that the consequences of uncertainty in relation to
the application of Section 32 DPA 1998 is not that data cannot be processed but merely
that journalists are subject to the Data Principles. By way of contrast, potential
whistleblowers who are not confident that they satisfy the public interest test may
choose to remain silent rather than risk making an unprotected disclosure.
Freedom of Information Act 2000
The Freedom of Information Act 2000 (FOI 2000) focuses on access to information rather
than disclosure and is relevant here because Article 10 of the European Convention on
Human Rights deals with both the receipt and imparting of information. By allowing
greater access to information about how government operates, the FOI 2000 aims to
increase accountability and transparency. There is a strong connection with public
interest disclosures because, where it is perceived that information is being
unreasonably withheld, whistleblowers can more easily justify their activities. In
exempting authorities from complying with duties to confirm or deny and to
communicate information, a public interest test is used in Section 2(1)(b) and Section
2(2)(b) FOI 2000[26]. An applicant can appeal to the Information Commissioner against
a decision to refuse access to information and this person has prepared guidance to the
interpretation of the public interest test. We now consider aspects of this document
(Information Commissioner, 2013) that might shed some light on the operation of such a
test in the context of whistleblowing.
The Information Commissioner’s Office (ICO) guidance relates to qualified
exemptions under the FOI 2000, i.e. the need for public authorities to weigh the public
interest in maintaining an exemption against the public interest in disclosure[27].
Because this statute uses the word “outweighs”, when the public interest is equal on
both sides the information must be released. There is no statutory presumption of public
interest in section 43B ERA 1996, which raises the question of what employment
tribunals should do if the scales are balanced. Given that the ERA 1996 is an
employment protection measure and that Article 10 of the European Convention can
have a bearing on its interpretation, it seems appropriate to give workers the benefit of
the doubt if the reasonableness of their belief is questioned. A related issue is whether, in
addition to the evidence presented by the parties, an employment tribunal can choose to
take into account other arguments about where the public interest lies (Whistleblowing
Commission, 2013, para 81)[28]. This would seem to be particularly appropriate where a
worker is unrepresented.
The ICO guidance emphasizes the general public interest in transparency and
suggests that if there is a “plausible suspicion of wrongdoing on the part of the public
authority, this may create a public interest in disclosure” (Whistleblowing Commission,
2013, p. 2). This raises the question as to whether in relation to Section 43B ERA 1996, it
will be easier to establish a reasonable belief in the public interest if a disclosure is about
the behaviour of a public body. I would argue that the qualities of transparency and
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accountability are of universal value in modern society. Although it may be particularly
important in the public sector to promote understanding and involvement in the
democratic process, these qualities are also vital to good governance and corporate
social responsibility in the private sector. Perhaps, in recognition of the difficulties that
would be experienced in drawing a meaningful line today, unlike FOI 2000, Part IVA
applies equally to both sectors. We have shown above how public and private interests
may be intertwined in the whistleblowing process. Thus, while it might be appropriate
for the ICO to suggest that public interest means public good and not the private
interests of a requester under FOI, such an approach is not appropriate under Section
43B ERA 1996.
Unsurprisingly, the ICO guidance discusses the types of public interest issues and
the relevance of a requester’s motive. However, both the subject matter of disclosures
and the issue of good faith are dealt with explicitly in Part IVA, so the question arises as
to whether they should also have a bearing on the reasonableness of a worker’s belief in
the public interest. Even if the answer is in the negative, it would be naive to think that
the type of alleged wrongdoing and the perceived motives of a worker might not
influence an employment tribunal’s assessment. Although good faith is now only
relevant to compensation, this would not necessarily prevent an employer alluding to an
improper motive in arguing that the worker did not have a reasonable belief in the public
interest.
Equally, although the alleged wrongdoing (“relevant failure”) may have been made
to a designated recipient under Part IVA ERA 1996, an employer might suggest that the
worker could not reasonably have believed that it was in the public interest to make such
a broad disclosure. For example, it would be easy to assert that it is only in the public
interest to report to the media as a last resort. In my opinion, such an argument would
create too much uncertainty and would undermine the operation of Part IVA ERA 1996.
Put simply, if the requirements for external disclosures under Sections 43G & H ERA
1996 are satisfied, the public interest test should not be used to argue that there was a
more appropriate recipient. However, the fact that the worker is aware that a “relevant
failure” has already been reported and is being investigated may well affect the
reasonableness of the belief that the disclosure was in the public interest.
Another factor that might contribute to the reasonableness of a belief is the grounds
for it. Clearly, a worker must have some basis for suspecting a “relevant failure”, but is
his or her case in relation to the public interest improved if he or she adduces
independent and concrete evidence of wrongdoing or can show that information already
in the public domain is misleading? More worrying is the argument that the worker
should have realized that the content of the information was not particularly valuable
and that this undermines the reasonableness of his or her belief in the public interest
being served by its disclosure. Given that disclosures may be protected under Part IVA
ERA 1996 even if they relate to “relevant failures” outside the UK, the public interest
here cannot be confined to the UK. As the ICO observes: “the public interest test is about
what is in the best interests of society in general, and this includes citizens of other
countries” (Information Commissioner, 2013, p. 21). Finally, it goes without saying that
the public interest test must be applied to the circumstances at the time the disclosure
was made and that subsequent events cannot affect the reasonableness of the worker’s
belief.
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The public interest test in part IVA Employment Rights Act 1996[29]
When it was established in the early 1990s, the charity Public Concern at Work offered
help and free legal advice to people who have “a concern that something seems to be
seriously wrong, illegal or dangerous which threatens the public interest”. Thus, it is not
entirely surprising that when Don Touhig M.P. introduced his Public Interest Disclosure
Bill in the parliamentary session in 1995/1996 the words “public interest” were critical to
the protection being afforded. Unashamedly, the common law defence was converted
into a sword for obtaining compensation for detriments suffered[30]. What some
commentators have found more difficult to understand is why the Public Interest
Disclosure Act 1998, whose Long Title proclaims that it aims “to protect individuals
who make certain disclosures of information in the public interest;” fails to mentions the
words “public interest” thereafter. The obvious explanation is that this measure had
all-party support and the consensus was that the common law defence was not an
appropriate platform on which to build a new employment right. Thus, according to the
original statutory provisions, the public interest was satisfied and protection was
afforded when a worker made a qualifying disclosure in good faith[31] to a specified
recipient. Clearly, the insertion of the public interest test in 2013 poses dangers to
workers who think that this will be satisfied simply because they have raised a concern
about serious wrongdoing through the appropriate channels. Indeed, the good practice
adage “when in doubt report”, which featured so prominently in whistleblowing
arrangements, must now be viewed in a different light.
The current statutory formula “in the reasonable belief of the worker making the
disclosure, is made in the public interest[32]” does not introduce a simple objective
test – the question the employment tribunal has to determine is not “was the disclosure
in the public interest?” It remains to be seen what allowance will be made for an
individual’s personal circumstances. For example, could it be reasonable for an
unsophisticated worker to believe that a disclosure was in the public interest because it
was “of interest to the public”? To illustrate another problem caused by the statutory
formula, we will take health and safety as an example. The fact that this is an important
topic is underlined by the duty of employees to report concerns under Regulation 14 of
the Management of Health and Safety Regulations 1999[33] and the special protection
afforded by sections 44 & 100 ERA 1996 in relation to detriments and unfair
dismissal[34]. These sections offer protection where it was not reasonably practicable to
raise the matter with a safety representative or safety committee and the employee
“brought to his employer’s attention, by reasonable means, circumstances connected
with his work which he reasonably believed were harmful or potentially harmful to
health or safety”. What constitutes “reasonable means” might not be particularly
contentious, especially if the employer has provided a reporting procedure. However,
what amounts to a reasonable belief in potential harm to health and safety could be more
difficult. For example, do employees generally appreciate that this could include
bullying and harassment?
In this respect, the original version of Section 43B ERA 1996 provided a useful
supplement to section 100 ERA 1996. If bullying and harassment was not perceived as
a health and safety issue under section 43B(1)(d)ERA 1996, it could be argued by
workers[35] that there was a failure to comply with a legal obligation under Section
43B(1)(b)ERA 1996, i.e. a breach of an implied term in the contract of employment[36].
Today, however, a potential whistleblower also has to decide whether or not there is a
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152
public interest in the disclosure of what others might view as a personal or minor matter.
When can it be said that there is a public interest in knowing that there is bullying and
harassment at a particular workplace? For example, does it depend on the nature or
frequency of the bullying/harassment, whether it affects a few individuals or permeates
the whole organization or whether it occurs in a large public sector body or a small
private sector firm?[37]
Conclusion
We have noted above that not all definitions of whistleblowing require there to be a
public interest in the disclosure of information. We have also seen how the concept of
public interest has been used in the common law, statutory provisions and by
international courts and organizations. The one certainty that emerges is that there is no
consensus about how the public interest should be determined. It follows that that many
potential whistleblowers will not be confident that they will get statutory protection
from employment tribunals and the courts under Part IVA ERA 1996. In addition to the
issue of whether a reasonable belief needs to be proved by the worker or disproved by
the employer, we have identified several other sources of uncertainty. These include the
fact that personal and public interest matters may be intertwined and that an
organization may encourage the internal reporting of concerns about wrongdoing that
do not have a public dimension to further its private interests. In relation to bullying or
harassment, for example, we have asserted that there may well be a public interest in
receiving information but workers might fail to make a disclosure because they are
unsure about whether their belief will be regarded as reasonable.
Perhaps more disturbing would be if workers with a legal or professional duty to
report had doubts about whether they would satisfy a public interest test. Fulfilling a
statutory duty[38] to disclosure information must be in the public interest but does the
performance of a contractual obligation necessarily satisfy this test? It may well be
insufficient for workers to argue that they reasonably believed that there was a public
interest in the performance of their contractual duty. At this stage, it is worth noting that
employees with two years of continuous service who do not satisfy the public interest
test contained in Section 43B ERA 1996 may still succeed in a claim for “ordinary” unfair
dismissal. Indeed, employers will find it difficult to argue that it was reasonable in all the
circumstances to dismiss an employee for fulfilling a contractual duty to report
wrongdoing, especially if a whistleblowing procedure had been followed. Compensation
for “ordinary” unfair dismissal is now capped under Section 124(1ZA) ERA 1996, so it
might be argued that a failure to compensate fully for both pecuniary and non-pecuniary
damage amounts to a breach of the right to an effective remedy under Article 13 of the
European Convention on Human Rights.
One obvious result of uncertainty is that those who are not legally required to report
wrongdoing may choose not to do so and society may be denied important information,
for example, about serious health and safety risks or financial scandals. In these
circumstances, it is suggested that the public interest test should be removed from Part
IVA ERA 1996 on the grounds that, without it, the legislation is likely to encourage more
reporting and afford better protection. If the test remains, it is argued that it is both
unnecessary and potentially confusing to apply it to concerns that are raised inside the
organization, especially where an employer’s policy does not require a public interest
test to be satisfied. It is submitted that the criteria to be used for determining the public
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interest in this context should be agreed by Parliament. Ideally, this would follow
extensive consultation with employers and trade unions and the results could be
inserted into the legislation. Alternatively, criteria could be embodied in a statutory code
of practice that would be taken into account by tribunals and courts in whistleblowing
cases[39]. Least desirable, but better than the current vacuum, would be a guidance
document. Whatever source is used, it should address the issues that both bolster and
potentially undermine the reasonableness of a belief.
Recommendations
Perhaps the first matter to be dealt with in any guidance document should be the burden
of proof. In the light of both Article 10 of the European Convention on Human Rights and
Article 11 of the European Union (EU) Charter of Fundamental Rights, it should be
stated that employers must demonstrate that the worker did not have a reasonable belief
that a disclosure was in the public interest and if the tribunal has doubts about where the
balance lies, the applicant should get the benefit. Second, it can be made clear that
reasonableness will be assessed at the time of disclosure and that exercise will not be
affected by subsequent events[40]. Third, it must be acknowledged that public and
private interests are intertwined and that the statutory test applies to both public and
private sector wrongdoing. Fourth, it can be asserted that fulfilling a statutory duty to
disclose information must be in the public interest but the performance of a contractual
obligation will not necessarily be so. Fifth, in relation to the evidence of a “relevance
failure”, tribunals should be positively disposed if the worker had sought advice from
others (for example, a lawyer or trade union) about the reasonableness of a belief.
However, an adverse inference should not be made where applicants chose to act on their
own to safeguard themselves or others. Sixth, a worker’s knowledge that the
wrongdoing had already been reported and was being investigated might undermine
the reasonableness of a belief in the public interest[41]. Conversely, evidence that
information already in the public domain is untrue or misleading may assist an
applicant in this respect. Seventh, it is appropriate to indicate that, because of the
extra-territorial reach of Part IVA ERA 1996, the public interest in this context may
embrace the interests of non-UK citizens. Eighth, it seems appropriate to state that
tribunals will not confine themselves to the evidence adduced by the parties in this
respect, especially where there is no representation. Finally, it should be noted that,
because the type of wrongdoing, the appropriateness of the recipient of a disclosure and
the question of good faith[42] are hurdles to be overcome elsewhere in Part IVA ERA
1996, they should not also be considered as factors affecting the reasonableness of a
belief in the public interest. Similarly, the seriousness of a relevant failure is expressly
mentioned as a factor to be taken into account in relation to disclosures under Sections
43G & 43H ERA 1996. However, it seems likely that tribunals will be urged to take this
into account as affecting the public interest test even in relation to reporting internally or
to prescribed persons.
Notes
1. Workers who do not use an employer procedure might be regarded as behaving unreasonably
for the purposes of Sections 43C-43H Employment Rights Act 1996 (ERA 1996). See Lewis
(2008).
2. See R v. Shayler [2003] 1 AC 247.
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3. SK & F v. Department of Community Services [1990] FSR 617.
4. Section 2(1) HRA 1998 states that: “A court or tribunal determining a question which has
arisen in connection with a Convention right must take into account any – (a) judgment,
decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion
of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of
the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the
Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so
far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that
question has arisen”.
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5. With the exception of Section 43D ERA 1996.
6. Section 123 (6A) ERA 1996 was inserted by the Enterprise and Regulatory Reform Act 2013.
7. In the public interest. (AGPS, Canberra, 1993) para 2.2.
8. There are constitutional constraints on Australian federal legislation regulating the private
sector.
9. International Labour Organisation Thesaurus (2005).
10. Recommendation CM/Rec (2014) 7 of the Committee of Ministers to member States on the
protection of whistleblowers (Adopted by the Committee of Ministers on 30 April 2014).
11. Norman Lamb M.P. Enterprise and Regulatory Reform Bill Deb, 3 July 2012, c388 Hansard.
12. Public Interest Disclosures Act 2002.
13. Whistleblower Protection Act 1993 Section 3.
14. Public Interest Disclosures Act 1994 (as amended in 2011).
15. Public Interest Disclosure Act 2010.
16. “(1) For the purposes of this Act, a public interest disclosure – (a) is a disclosure of information
by a person about disclosable conduct that – (i) the person honestly believes on reasonable
grounds tends to show disclosable conduct; or (ii) tends to show disclosable conduct
regardless of whether the person honestly believes on reasonable grounds the information
tends to show the conduct; and (b) includes any assistance given by the discloser during an
investigation of the information mentioned in paragraph (a).” According to Section 8,
disclosable conduct is any of the following: (a) conduct of a person that could, if proved – (i) be
a criminal offence against a law in force in the ACT; or (ii) give reasonable grounds for
disciplinary action against the person; (b) action of a public sector entity or public official for
a public sector entity that is any of the following: (i) maladministration that adversely affects
a person’s interests in a substantial and specific way; (ii) a substantial misuse of public funds;
(iii) a substantial and specific danger to public health or safety; (iv) a substantial and specific
danger to the environment.
17. “(1) A disclosure of information is a public interest disclosure if: (a) the disclosure is made by
a person (the discloser) who is, or has been, a public official; and (b) the recipient of the
information is a person of the kind referred to in column 2 of an item of the following table; and
(c) all the further requirements set out in column 3 of that item are met”.
18. “An Act to facilitate the disclosure of public interest information, to provide protection for
those who make disclosures and for those the subject of disclosures, and, in consequence, to
amend various Acts, and for related purposes”.
19. Section 5: “The purpose of this Act is to promote the public interest – (a) by facilitating the
disclosure and investigation of matters of serious wrongdoing in or by an organisation; and
(b) by protecting employees who, in accordance with this Act, make disclosures of
information about serious wrongdoing in or by an organisation”.
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20. Other countries protect “persons”, especially where the legislation covers the public sector
only.
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21. It is worth noting that Article 11 of the EU Charter of Fundamental Rights 2000 mirrors the
right contained in Article 10 (1), but is not subject to the qualifications contained in Article
10(2). Following the Lisbon Treaty, this Charter acquired the status of an EU treaty in
December 2009.
22. It could be argued that an employee is being loyal by putting pressure on the employer to deal with
wrongdoing if otherwise the business might fail. See Leys and Vandekerckhove (2014).
23. A failure to take a report of alleged wrongdoing seriously or to deal with proven impropriety
may constitute a breach of the implied term of trust and confidence which is inherent in all
contracts of employment. If a concern about health or safety is raised there may also be a
breach of the duty of care.
24. See Bolton School v. Evans [2007] IRLR 140.
25. SI 2000/1864. These are: (1) The code published by the Broadcasting Standards Commission
under Section 107 of the Broadcasting Act 1996. (2) The code published by the Independent
Television Commission under Section 7 of the Broadcasting Act 1990. (3) The Code of Practice
published by the Press Complaints Commission. (4) The Producers’ Guidelines published by
the British Broadcasting Corporation. (5) The code published by the Radio Authority under
section 91 of the Broadcasting Act 1990.
26. Section 2(1): “Where any provision of Part II states that the duty to confirm or deny does not
arise in relation to any information, the effect of the provision is that where either – (a) the
provision confers absolute exemption, or (b) in all the circumstances of the case, the public
interest in maintaining the exclusion of the duty to confirm or deny outweighs the public
interest in disclosing whether the public authority holds the information, section 1(1) (a) does
not apply. (2) In respect of any information which is exempt information by virtue of any
provision of Part II, section 1(1) (b) does not apply if or to the extent that – (a) the information
is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the
circumstances of the case, the public interest in maintaining the exemption outweighs the
public interest in disclosing the information”.
27. Section 43B ERA 1996 does not require a balancing exercise.
28. Public Concern at Work’s Whistleblowing Commission asked the following question: “But
what happens if the Tribunal concludes that it was in the public interest to make the
disclosure of information but not for the reasons given by the worker? It is to be hoped that in
those circumstances the Tribunal would still find the disclosure was protected”.
29. The Public Interest Disclosure Act 1998 inserted Part IVA into the Employment Rights Act
1996.
30. According to the Explanatory Notes “the disclosure must be one that a court would find
lawful and justified in the public interest, in an action for breach of confidence. The public
interest would have to be sufficient to outweigh the normal duty of confidentiality; this would
exclude trivial complaints, or disclosures which were not genuinely in the public interest”.
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31. Inevitably the words “good faith” were seized on by employers as a possible defence but
ultimately the Court of Appeal put the burden on employers to show that the worker had acted
in bad faith. This stance was applauded by many who were disturbed that attention was
being focused on the messenger rather than the concern he or she was endeavouring to raise.
32. Section 43B ERA 1996.
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33. “Every employee shall inform his employer or any other employee of that employer with
specific responsibility for the health and safety of his fellow employees – (a) of any work
situation which a person with the first-mentioned employee’s training and instruction would
reasonably consider represented a serious and immediate danger to health and safety; and (b)
of any matter which a person with the first-mentioned employee’s training and instruction
would reasonably consider represented a shortcoming in the employer’s protection
arrangements for health and safety, in so far as that situation or matter either affects the
health and safety of that first mentioned employee or arises out of or in connection with his
own activities at work, and has not previously been reported to his employer or to any other
employee of that employer in accordance with this paragraph”.
34. “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly
dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that – (a)
having been designated by the employer to carry out activities in connection with preventing
or reducing risks to health and safety at work, the employee carried out (or proposed to carry
out) any such activities, (b) being a representative of workers on matters of health and safety
at work or member of a safety committee – (i) in accordance with arrangements established
under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the
employer, the employee performed (or proposed to perform) any functions as such a
representative or a member of such a committee, (ba) the employee took part (or proposed to
take part) in consultation with the employer pursuant to the Health and Safety (Consultation
with Employees) Regulations 1996 or in an election of representatives of employee safety
within the meaning of those Regulations (whether as a candidate or otherwise), (c) being an
employee at a place where – (i) there was no such representative or safety committee, or (ii)
there was such a representative or safety committee but it was not reasonably practicable for
the employee to raise the matter by those means, he brought to his employer’s attention, by
reasonable means, circumstances connected with his work which he reasonably believed were
harmful or potentially harmful to health or safety, (d) in circumstances of danger which the
employee reasonably believed to be serious and imminent and which he could not reasonably
have been expected to avert, he left (or proposed to leave) or (while the danger persisted)
refused to return to his place of work or any dangerous part of his place of work, or (e) in
circumstances of danger which the employee reasonably believed to be serious and imminent,
he took (or proposed to take) appropriate steps to protect himself or other persons from the
danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took (or
proposed to take) were appropriate is to be judged by reference to all the circumstances
including, in particular, his knowledge and the facilities and advice available to him at the
time. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an
employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed
if the employer shows that it was (or would have been) so negligent for the employee to take
the steps which he took (or proposed to take) that a reasonable employer might have
dismissed him for taking (or proposing to take) them”.
35. Defined more broadly in section 43K ERA 1996 than in Section 230(3) ERA 1996.
36. Either the duty of care or the employer’s obligation to maintain trust and confidence.
37. According to Roberts (2014): “While the immediate motivation may be personal outrage due
to the bullying or sexual harassment, community standards and attitudes ensures that those
issues also have a strong public interest dimension”.
38. On money laundering see Sections 330-332 of the Proceeds of Crime Act 2002 and on
suspected terrorism see Section 19 Terrorism Act 2000.
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39. This could build on the existing British Standards Institute (2008) Whistleblowing
Arrangements Code of Practice, which needs to be updated anyway. See also the Draft Code
of Practice included in the report of Public Concern at Work’s Whistleblowing Commission.
40. It is recognized that, in practice, this may be easier said than done.
41. Such an approach is not incompatible with section 43L ERA 1996 which states that: “Any
reference in this Part to the disclosure of information shall have effect, in relation to any case
where the person receiving the information is already aware of it, as a reference to bringing
the information to his attention”.
42. The fact that lack of good faith can be taken into account in assessing compensation under
Section 123(6A) ERA 1996 confirms that it is possible for a worker acting in bad faith to
reasonably believe that a disclosure is in the public interest. The courts have also
acknowledged that a person’s motive is subjective and may be mixed and/or change over
time.
References
Bolton School v. Evans (2007) IRLR 140.
British Standards Institute (2008), Whistleblowing Arrangements Code of Practice, BSI, London.
Brown, A. (Ed.), (2008), Whistleblowing in the Australian Public Sector: Enhancing the Theory and
Practice of Internal Witness Management in Public Sector Organisations, ANU EPress,
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Guja v. Moldova (2008) ECHR 14277/04.
Heinisch v. Germany (2011) IRLR 922.
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Research Handbook, Edward Elgar, Cheltenham.
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Roberts, P. (2014), “Motivations for whistleblowing: personal, private and public interests”,
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Corresponding author
David Lewis can be contacted at: [email protected]
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