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Can Workers Obtain Whistleblowing Protection Based on Subjective Belief?

on Friday, 06 December 2019.

Complaints by a worker that they had been defamed may have whistleblowing protection if the worker subjectively believed them to be in the public interest regardless of their motive, confirms the Court of Appeal.

We previously reported on the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) decisions in Ibrahim v HCA International, in which both found that Mr Ibrahim's complaints about the rumours circulating about him could not be in the public interest. They were found to be personal and were made in order to "clear his name".

The ET and EAT found that Mr Ibrahim had failed to show that he had whistleblowing protection by satisfying the public interest test that:

  • at the time he raised his complaint he believed he was acting in the public interest; and
  • his belief was reasonable

The Court of Appeal has now overturned this decision because the ET and EAT had not considered Mr Ibrahim's subjective beliefs as part of the public interest test.

Subjective Belief in the Public Interest

The ET had failed to ask Mr Ibrahim the key question - whether at the time of his disclosure he subjectively believed that his complaints were in the public interest.

The ET and EAT had wrongly focused on Mr Ibrahim's apparently personal motives for the complaints when assessing his subjective belief. It was noted that a claimant can believe something is in the public interest, even if the motivation to make the complaints is personal and not in relation to public interest.

The Court of Appeal also said it was irrelevant that Mr Ibrahim had not mentioned anything about the public interest, or given any evidence to that effect. This was because the ET had not asked him about this specific point, which meant that his evidence didn’t cover this point.

The case has now been remitted to the same tribunal for consideration of whether or not Mr Ibrahim subjectively believed he was acting in the public interest.

What Can You Learn from This?

This case is a reminder of the importance attached to the subjective beliefs of a claimant, even if their motive appears purely personal. An employee can be motivated to make a disclosure by a mix of both personal and public motives. Employers should remember that a complaint made in the public interest does not need to be the only or predominant motive for a claimant.

Employers should be careful when dealing with complaints made by employees and ensure that they deal with all complaints using the correct internal procedures.

Do you need advice on handling worker complaints? Please contact Nick Murrell in our Employment Law team on 0117 314 5627, or by completing the form below.

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