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Whistleblowing - What Is the "Public Interest" Test?

on Friday, 01 February 2019.

Since 2013, whistleblower protection has only been available to workers who reasonably believe that their disclosure is in the public interest. Can allegations by a worker that he or she has been defamed ever satisfy this test?

The answer is - it all depends on the facts.

Ibrahim v HCA International Limited

Mr Ibrahim complained to HCA that rumours were circulating that he was responsible for breaches of patient confidentiality. Mr Ibrahim said he needed to "clear his name". 

HCA investigated his complaint but rejected it. When Mr Ibrahim was later dismissed, he lodged a whistleblowing claim.

For his claim to get off the ground, Mr Ibrahim needed to show that:

  1. at the time he raised his complaint with HCA he believed he was acting in the public interest; and
  2. his belief was reasonable.

HCA claimed that Mr Ibrahim's complaint could not be in the public interest, because his concern was only that false rumours had been made about him and the effect those rumours had on him personally. 

Both the Employment Tribunal and the Employment Appeal Tribunal agreed with HCA. All the evidence supported the conclusion that Mr Ibrahim was seeking to protect his personal interest. As a result, his claims failed.

What Can We Learn From This?

To benefit from the special protection afforded to whistleblowers, workers must be able to show that at the time they made their disclosure they believed it had a connection to the wider public interest. This makes it more difficult for whistleblowing claims to succeed where the alleged disclosure is a breach of the employee's own contract of employment or, as in the case of Mr Ibrahim, alleged defamatory comments by colleagues. 

However, the facts of each case will be all important. There will be cases where disclosures are both in the public interest and in the private interests of the employee concerned. For example, Mr Ibrahim later alleged that he was concerned about wider data protection issues and that this engaged the public interest. The problem for him was that there was no evidence that he held this belief at the time he raised his complaint with HCA.

For more information, please contact Michael Halsey in our Employment Law team on 020 7665 0842.   

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