“that a person has failed, or is failing or is likely to fail to comply with any legal obligation to which he was subject.”

The decision in Sodexho v Parkins [2002] IRLR 109 meant that aggrieved employees could rely on a breach of their own employment contract in order to get a whistleblowing claim off and running - no matter how tenuous any alleged breach might have been.

Needless to say tribunals were often inundated with extremely unworthy whistleblowing claims, and employers were faced with increased costs of defending them.

In June 2013 the law was changed with the result that an employee bringing a whistleblowing claim also had to satisfy a new “public interest” test.

For most categories of protected disclosures (e.g. a criminal offence is being committed, a breach of heath & safety, or environmental damage) then the public interest test is always likely to be easier to establish.

However,  whether a breach of an employee’s contract of employment can be in the public interest is arguably more circumspect.

The Tribunal Proceedings

The claimant worked as an interpreter at a private hospital helping to interpret for Arabic speaking patients who required interpreting services.

In March 2016 the claimant asked management to investigate rumours which were circulating that he had allegedly been breaching patient confidentiality. In addition, he alleged a colleague was behaving unprofessionally towards him and was slandering him in front of his colleagues. In short, the claimant wanted to clear his name and restore his reputation.

The question before the tribunal was whether the claimant's grievances fell within the ambit of s43(B)(1)(b) ERA, namely a breach of a legal obligation on the part of his employer (see above).

The tribunal found that s43(B)(1)(b) was not engaged because the claimant had not identified any legal obligation which may have been breached when the false rumours were made, if indeed, they were made at all.

The Employment Appeal Tribunal (“EAT”)

The EAT disagreed and concluded that s43(B)(1)(b) ERA was wide enough to include tortious duties, including defamation and breach of statutory duty such as those contained in the Defamation Act 2013.

The EAT did however agree with the tribunal that the claimant hadn’t satisfied the public interest test.

The Public Interest Test

Given there is still scope to bring quite a wide range of employer related “breaches” into play by reference to s43(B)(1)(b), it is worth noting how tribunals approach the public interest test.

Following the Court of Appeal judgment in Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979 a tribunal's two stage test can be described as follows:

(1) Whether the worker believed at the time he was making it that the disclosure was in the public interest; and

(2) If so, whether that belief was reasonable.

Other factors that tribunals will bear in mind following Chesterton:

(3) A workers belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the worker’s motivation;

(4) There are no hard and fast rules about what is reasonable to view as being in the public interest; and

(5) In cases where the disclosure relates to a breach of the worker’s own contract employment there may be features that make it reasonable to regard the disclosure as being in the public interest, as well as in the personal interest of the worker.

In this case the EAT supported the tribunal’s view that the claimant’s concern was only that false rumours had been made about him, and the effect of those rumours on him.

Comment

It is probably fair to say the public interest test represents a “high bar” for claimants to overcome in whistleblowing clams. This is especially so where the protected disclosure relates to a breach of the employee’s own contract of employment which, at first blush, one would think is more likely going to be about something personal to the employee, rather than it being in the wider public interest.

Satisfying the test is likely to focus on what was said by an employee at the time the grievance or complaint was dealt with by the employer. It is suggested that with s43(B)(1)(b) disclosures not too many employees are likely to be thinking about possible public interest issues in the heat of resolving their grievances as was the case here.