Employers should not assume that the disclosure of an alleged breach of employment contract will necessarily be outside the scope of whistleblowing protection. The Court of Appeal has confirmed that disclosure of private workplace disputes can be protected by whistleblowing law in certain circumstances, for example if the disclosure relates to serious, deliberate wrongdoing by a large employer and materially affects a significant number of workers.
Whistleblowing disclosures will only be protected if the whistleblower reasonably believes that the disclosures are 'in the public interest'. The Court of Appeal has ruled that this does not mean that the disclosure must always extend outside the workplace and further the interests of persons other than the workers, neither is there a requirement for a minimum number of workers to be affected. The Court declined to give any 'bright line' test for when a disclosure would be in the public interest, but noted that relevant considerations would include:
- the number of individuals whose interests were served by the disclosure;
- whether the interests affected are important or trivial, and the extent to which they are affected;
- whether the wrongdoing disclosed is deliberate or inadvertent;
- the size of the wrongdoer in terms of its staff, suppliers, clients (although this should not be taken too far).
The facts of this case concerned a disclosure relating to alleged deliberate manipulation of management accounts on a substantial scale, which affected the commission payments of a group of 100 managers. The employer was a substantial and prominent business, and if the internal accounts fed into statutory accounts this would unquestionably have been a matter of public interest. In these circumstances, the Court upheld the tribunal's conclusion that it was reasonable for the worker to believe the disclosure was in the public interest (even if it had erred in relying only on the numbers affected).
The Court also noted that it is open to a tribunal to find that a belief was reasonable on grounds which the worker did not have in mind at the time and that belief in the public interest need not form part of the worker's motivation.