Whistleblowing: when is a disclosure in the public interest? – Dobbie v Feltons Solicitors UKEAT/0130/20/OO

Sometimes, an employee will discover or happen upon some evidence of her employer’s wrongdoing, and will feel compelled to report it, either to a supervisor, a regulator, or some public body. Commonly known as ‘whistleblowing’, there have been a number of statutory advancements to protect those who come forward. Most notable of these is the Employment Rights Act 1996, which defines a qualifying disclosure in s.43B as follows:

In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show [wrongdoing]

The section then defines a number of specific wrongdoings, including criminal offences and failing to comply with legal obligations.

The facts of the case

The case concerned the Claimant, a consultant at a firm of solicitors, who discovered that the firm was charging Client A too much. In an email to Client A, the Claimant explained how he thought that the billed hours were too high and wouldn’t stand up to scrutiny in an assessment of costs at the end of the litigation.

The Claimant had his contract terminated, and brought a claim under the whistleblowing legislation, alleging that part of the reason he had been terminated was because of the disclosures he made to Client A. He claimed those disclosures were protected. He claimed that the wrongdoing was that the firm had breached its legal and regulatory obligations to Client A. The Tribunal found that, although they did, in the Claimant’s reasonably held belief, tend to show such wrongdoing, they failed on the public interest test of s.43B.

The public interest test

In the appeal to the EAT, HHJ Tayler ran through the public interest test as it had been outlined in Chesterton Global Ltd v Nurmohamed [2018] ICR 731. The factors which would be likely relevant to the question of whether a disclosure was made in the public interest were, according to Underhill LJ:

The numbers in the group whose interests the disclosure served;
The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
The nature of the wrongdoing disclosed; and
The identity of the alleged wrongdoer.

The Respondent claimed that, as the Claimant had, while making the disclosure, advised more billable hours for himself, and no overall reduction in billing, he was acting in his private interests. HHJ Tayler indicated that this was not correct; although the Claimant’s solution may well have been in his own private interests, the disclosure itself was, in his reasonable belief, in the public interest. The public interest is served by solicitors not overcharging their clients, and the Claimant would have known that.

The dismissal

The other issue in the appeal was causation: whether the disclosures had contributed to the dismissal, and to what degree. The initial tribunal had concluded that the disclosures “had little influence” on the decision to terminate the contract. However, HHJ Tayler ruled the Tribunal had applied the wrong legal test, as the correct test was whether the disclosures had “any material effect” on the decision, and therefore the original Tribunal had erred in law.

The case was remitted for consideration by a different Employment Tribunal.

Our lawyers’ views on Dobbie v Feltons Solicitors UKEAT/0130/20/OO

Chris Hadrill, the partner in the employment team at Redmans, commented on the case: “In this case the Employment Appeal Tribunal confirmed that the Tribunal has applied the wrong legal test in determining whether the disclosure that the Claimant had made was in the public interest and, further, whether the dismissal had been caused by any protected disclosures that the Claimant had made.”

Link to judgment: https://assets.publishing.service.gov.uk/media/6025265dd3bf7f031ce1357e/Mr_A_Dobbie_v_Paula_Felton_ta_Feltons_Solicitors_UKEAT_0130_20_OO__V_.pdf