306: Employment Appeals Tribunal considers whistleblowing public interest test

For an employee or a worker to be protected from detriment under the whistleblowing legislation, they must have made a qualifying disclosure relating to one of six categories of wrongdoing and reasonably believe that the disclosure is in the public interest. The issue of what is in the public interest can be a tricky question, particularly where a disclosure is also made in the individual’s private interests. In the recent case of Dobbie v Paula Felton t/a Feltons Solicitors, the EAT considered the factors which should be taken into account when assessing a claimant’s belief public interest of their disclosure.

Mr Dobbie, a consultant solicitor for Feltons Solicitors, was substantially involved in the work for one of the firm’s most important clients. Following the termination of his consultancy agreement, he brought a whistleblowing claim alleging that he had been subjected to a number of detriments after he had made protected disclosures relating to the overcharging of this client by the firm, in the context of the client’s prospects of recovering litigation costs from its opponent. These alleged detriments included the termination of his consultancy agreement.

The Tribunal held that Mr Dobbie reasonably believed that his disclosure showed breach of a legal duty to a client. However, the Tribunal dismissed his claim on the grounds of the public interest test, believing the issue of overcharging was a private matter only and for causation as the Tribunal also found that the disclosures made by Mr Dobbie had little influence on the decision to terminate his consultancy agreement. Mr Dobbie appealed to the EAT on grounds that the Tribunal had misapplied the public interest test and was wrong on the issue of causation.

The EAT upheld Mr Dobbie’s appeal, noting that the Tribunal had failed to apply the public interest test set out in the case of Chesterton Global Ltd v Nurmohamed. Factors which must be considered include:

• the nature of the wrongdoing disclosed;
• the identity of the alleged wrongdoer;
• the nature of the interests affected;
• the numbers of people affected by the disclosure; and
• the extent to which they are affected by the alleged wrongdoing.

The Tribunal had only considered one of these factors: the numbers of people affected. It had concluded that Mr Dobbie’s disclosure concerned a private matter relating to one client, and so could not be in the public interest. However, Mr Dobbie had a reasonable belief that the firm was overcharging a client in breach of its contractual obligations and, more importantly, in breach of regulatory requirements. As the EAT noted, it is in the public interest that solicitors are held to high standards of conduct, honesty and integrity. Overcharging could also raise regulatory issues which could result in disciplinary proceedings in order to protect the public. Since the Tribunal had failed to carry out a proper legal analysis of these matters, the case was sent back to be considered by a different Tribunal.

The question of causation was also remitted for reconsideration since the Tribunal had failed to properly consider whether Mr Dobbie’s consultancy agreement had been terminated on the grounds that he had made a protected disclosure. To avoid liability, Feltons would have to show that Mr Dobbie’s disclosures had not ‘materially influenced’ its decision.

As well as being a useful reminder that the whistleblowing protections extend to some consultants, this judgment highlights the importance of applying the factors set out in the Chesterton case when assessing whether a disclosure is in the public interest. The EAT also confirmed that a disclosure of information relating to one person can be a matter of public interest, such as an error in the medical treatment of a patient. Even though Mr Dobbie had made allegations of overcharging in relation to one client, this may therefore still meet the public interest test. It is also worth noting that an individual’s motivation for making a protected disclosure is irrelevant and that a disclosure motivated primarily by personal interests can still be in the public interest. Businesses must therefore consider carefully whether a disclosure of information amounts to a protected disclosure even if it appears to have been made in an individual’s private interests, particularly where this may be linked to termination or other detrimental action.