Whistleblowing: 'public interest' despite private purpose

Dobbie v Paula Felton t/a Feltons Solicitors

Even though a whistleblower’s primary purpose in making a disclosure was private in nature, it could still pass the test of showing that it was ‘made in the public interest’ and thereby acquire legal protection.

A protected disclosure involves a worker disclosing information which is a qualifying disclosure and which is made in one of the protected ways. For a disclosure to amount to a qualifying disclosure:

  • its subject matter must be within the scope of the protection (it must make one of certain specified types of allegation of wrongdoing)
  • the worker must reasonably believe that the disclosure tends to show one of more of those specific types of wrongdoing, and
  • the worker must reasonably believe that the disclosure is ‘made in the public interest’ (s. 43B of the Employment Rights Act 1996)

‘Public interest’ is not defined.

Background

Mr Dobbie worked as a consultant for Feltons during which time he qualified as a solicitor. His consultancy agreement was terminated, with the reasons given being Mr Dobbie’s insistence his fees double, competence and handling of a claim for his parents. The majority of Mr Dobbie’s work was for Client A, one of the firm’s most important clients. Following the termination, Mr Dobbie brought a whistleblowing detriment claim, relying on disclosures concerned with the billing of Client A and on overcharging of other fee earners’ time. The tribunal held that Mr Dobbie had a reasonable belief the disclosures were of a failure to comply with a legal obligation (charging of clients), but not that he held a reasonable belief the disclosures were in the public interest. It did not think that the emails sent to the firm by Mr Dobbie showed that he believed, when he sent them, that the information disclosed in them would enhance the protection of the public (or a section thereof) from solicitors who, in their interim bills overstated the hours spent on working on cases. Mr Dobbie appealed, arguing among other things that the tribunal had misapplied the public interest test.

EAT decision

The appeal was allowed and the case remitted to a different tribunal to reconsider whether the protected disclosures were made in the public interest and, if so, whether it had a material influence on the decision to terminate the consultancy agreement.

The EAT looked at the seminal case Court of Appeal decision in Chesterton Global Ltd v Nurmohamed of which the tribunal made no mention (not an error of law as such but something which made it difficult for the EAT to divine what principles had been applied). The EAT identified, at para. 27 of the judgment, 10 key points in the Chesterton decision, none of which are surprising but are useful in such a tabulated form.

It then went on, at para. 28, to add eight observations of its own. Among them are that something can be in the public interest without interesting the public, without being known about by the public, or can relate to specific incident without any likelihood of repetition. While the factors in the Chesterton case provide a useful checklist, it’s not an error of law not to go through them all – although it would be if a relevant factor were excluded from consideration.

The EAT could not understand how the tribunal had applied the correct principles in coming to the conclusion it did - given the finding of reasonable belief of breach of legal obligation about overcharging, it wasn’t that much of a stretch to find a reasonable belief that the disclosure was in the public interest. Even if Mr Dobbie’s primary motivation were his own remuneration and not concerns over overcharging, that wouldn’t prevent his reasonable belief that the disclosure was being made in the public interest, nor need it to be made in the interest of a definable section of the public.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0130_20_1102.html

Comment

This is a useful reminder that even relatively narrow complaints can be protected disclosures and even if they just relate to one client. This is especially so for solicitors where they have regulatory obligations with regards to charging.