In order to be protected against detriment or dismissal under whistleblowing law, a worker must have made a “qualifying disclosure”. A qualifying disclosure is any disclosure of information which:
- tends to show that one or more of six specified types of wrongdoing (which include non-compliance with the law or a regulatory requirement) has taken place, is taking place or is likely to take place; and
- in the reasonable belief of the worker, is made in the public interest.
If a whistleblower makes a disclosure concerning a single individual, can the whistleblower’s disclosure still pass the “public interest” test? This question was explored in the recent Employment Appeal Tribunal (EAT) case of Dobbie v. Paula Felton t/a Feltons Solicitors.
Background
The Claimant, Mr Dobbie, worked as a consultant for the Respondent, Feltons Solicitors. Feltons terminated his consultancy, citing general concerns with his competence, his insistence that his fees were doubled and his handling of a claim for his parents. Following his termination, Mr Dobbie raised a whistleblowing claim based on two emails he had sent to the firm alleging that they were overcharging one specific client.
In the first instance, the Employment Tribunal (ET) held that Mr Dobbie did hold a reasonable belief that the disclosures were due to Feltons’ failure to comply with its legal obligation to charge their clients accurately. However, they also held that he did not hold a reasonable belief that his disclosures were made in the public interest, in large part as they related to just one client and public interest was not his primary concern. Mr Dobbie appealed the ET’s decisions. One of his grounds of appeal was that the ET had incorrectly applied the public interest test.
The appeal
The EAT allowed Mr Dobbie’s appeal, remitting the case to another tribunal to consider this point, among others. The EAT held that, as long as Mr Dobbie had a genuine and reasonable belief that his disclosures were in the public interest, that public interest did not have to be his predominant motive in making the disclosures. If he reasonably believed that he was disclosing information that tended to show Feltons was in breach of regulatory obligations in overcharging one client, the disclosures did not cease to be protected just because his motive was protecting the client’s position. This reasoning had led the ET in the first instance to determine that it was a private matter between the client and the firm and the ET had failed to consider whether the protection of one client alone could have constituted the protection of a “section of the public”. The EAT viewed that, in this case, the disclosures could have advanced the general public interest of solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.
Comment
This case acts as a useful reminder that even relatively narrow complaints can qualify as protected disclosures, even when they relate to a single client. Employers with regulatory obligations (lawyers, accountants etc.) should note that in the context of a whistleblowing claim, a disclosure may raise matters of “public interest” by the very fact that it relates to regulations in place to protect the public.
