Under the whistleblowing provisions, claimants making a qualifying disclosure have to show they have a reasonable belief that it is “in the public interest”. In Morgan v Royal Mencap Society, the Employment Appeal Tribunal (EAT) held that it was reasonably arguable that an employee could consider health and safety complaints were in the wider interests of employees generally and therefore in the public interest.
Basic facts
Ms Morgan worked for Mencap from 11 September 2011 until she resigned on 4 July 2014. She brought a number of claims, including constructive unfair dismissal and that she had been automatically unfairly dismissed and subjected to a detriment because of a public interest disclosure (whistleblowing) and complaints about health and safety matters. These related to cramped working conditions which had adversely affected her knee and her lower back. She had raised these issues both verbally and by email on various occasions with her managers, as well as by way of Mencap’s safeguarding reporting form.
Ms Morgan claimed that these disclosures were in the public interest in that the public should know about the working conditions to which charities like Mencap, who receive financial donations from the public, subjected its employees and because they could potentially present a threat to the health and safety of others. Mencap argued that her claims should be struck out as they were not “in the public interest” and could not therefore constitute protected disclosures.
Tribunal decision
At a preliminary hearing the tribunal judge noted that the public interest test could be satisfied even where the basis of the disclosure was wrong and/or there was no public interest in the disclosure being made, provided that the worker believed that they had made the disclosure in the public interest.
However, there had to be some real public interest in communicating and receiving the information or in having the information in the public domain. Although the disclosures were highly relevant to Ms Morgan, the judge concluded that she could not have a reasonable belief that her complaints about cramped working conditions could amount to being in the public interest. He therefore struck out her claim although he had not heard any evidence from Ms Morgan and only limited evidence from Mencap.
EAT decision
The EAT held that the tribunal was wrong to strike out the claim without hearing any evidence from Ms Morgan about how the public interest, in her belief, was engaged.
In the EAT’s view this was not a case where it could be said that no reasonable person could have believed that the matters Ms Morgan was raising engaged the public interest. On the contrary, it was reasonably arguable that an employee could consider health and safety complaints - even if they were the main person affected - were in the wider interests of employees generally.
It was a question of fact as to whether that was the case or not. Given that the facts were disputed in this case as to the question of public interest, the only way of resolving that dispute was by hearing the evidence. The tribunal judge erred in law therefore when he struck out the case on the basis of legal argument only and without resolving the potential factual disputes.
The EAT allowed the appeal and remitted the claim to be heard by a different tribunal judge.