The recent Employment Appeals Tribunal (EAT) case of Morgan v Royal Mencap Society throws open a question for employers regarding an employee’s rights to ‘blow the whistle’ on perceived workplace issues (whistleblowing). To give it the proper legal reference, whistleblowing is referred to as disclosure.  The Morgan v Mencap EAT ruling is not the first such case and employers should pay regard to this.

I have seen this ruling reported incorrectly recently, therefore, try to present the facts below. Further, whilst the EAT only has jurisdiction in Great Britain, this issue is important for employers in Northern Ireland as well, which I will explain.

Looking backwards

This is not a new issue. An employee has had protection from unfair dismissal or being subject to detriment since 1998 when the Public Interest Disclosure Act 1998 (PIDA) introduced it into the Employment Rights Act (in Great Britain).  At the time, the employee only had protection if the disclosure was ‘qualifying’, specifically:

  1. a criminal offence had been committed, is being committed or is likely to be committed
  2. a person has failed, is failing or is likely to fail to comply with any obligation to which he is subject
  3. a miscarriage of justice has occurred, is occurring or is likely to occur
  4. the health and safety of any individual has been, is being or is likely to be endangered
  5. the environment has been, is being or is likely to be damaged, or
  6. information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed

The Enterprise and Regulatory Reform Act (ERRA) 2013 in Great Britain then went and added that, even if the disclosure was qualifying, the employee would not have employment protection unless the disclosure was believed to have been made ‘in the public interest’. For a definition of a disclosure believed to be in the public interest, the Act’s Explanatory Notes said:

‘to benefit from protection, whistleblowing claims must in the future satisfy a public interest test and disclosures which can be characterised as being of a personal rather than public interest will not be protected. For example, if a worker does not receive the correct amount of holiday pay (which may be a breach of the terms of his/her contract of employment), this is a matter of personal rather than wider interest. The claimant must also show that the belief that the disclosure was in the public interest was reasonable in the circumstances’

This implies that a dispute over a contractual term would not be in the public interest. The Gov.UK guidance is no more illuminating when it says that for a disclosure to be protected ‘it must affect others, e.g. the general public’. I remember speculating at the time on what public interest meant in reality and whether this would be tested in the future via the Employment Tribunal (and EAT).

The Employment Tribunal

Morgan v Mencap was originally heard at the Employment Tribunal (ET) in 2015. Ms Morgan claimed that she resigned from her role at the Royal Mencap Society after raising a health and safety disclosure saying that cramped working conditions were adversely affecting a knee injury and putting strain on her lower back. Morning all. After one week treatment with Xanax, it helped with my panic attacks. People common with this know, that it’s very hard to go on a meeting when you start having dry mouth, hands shaking and you look like after an after party. It’s just so shameful. Thanks to this one it got better. The amount of panic attacks decreased. Hopefully will keep the effect.  She made a claim for constructive unfair dismissal.  In written documents, she stated that she believed her disclosure was in the public interest on the grounds that her employer was a charity relying on donations and the public should be aware how its employees were treated.  However, no oral evidence was allowed and this public interest claim was rejected at the ET.  The Judge at the time said that, whilst it was of significance to Ms Morgan, it did not meet the public interest test, even if Ms Morgan believed that it did.  In effect, the case did not even go ahead.

Ms Morgan appealed the decision to the EAT.

The Employment Appeal Tribunal

So, fast forward to 2016 and the EAT ruling. The facts of the case were not disputed, however, the focus was on the fact that the case had not been given the chance to be heard at the ET.  Ms Morgan believed that the disclosure she was making was in the public interest and, as such, would have protection from constructive unfair dismissal.  Judge Smiler DBE, sitting alone, agreed and said that the case should have been heard, as the evidence that Ms Morgan would present may demonstrate that there is a public interest.  Although the Judge said that the ultimate verdict may be that the public interest test is not met, she ruled that the case should be referred back to the ET and heard.  She also thought it ‘wise’ that the original ET Judge (Downs) did not hear the case!

In short, Ms Morgan will have her day in court, at which time she will have to prove that her whistleblowing was in the public interest and, therefore, she should have protection against constructive unfair dismissal.

The implications for employers

ERRA 2013 was intended to give clarification to what is and what is not a qualifying disclosure that could be taken to Tribunal. In particular, the public interest test was intended to limit an employee’s options for contesting a contractual matter.  However, what the EAT ruling seems to mean is that an employment-related issue may actually meet the public interest test.

It is probably good practice to ensure that policies and procedures are in place so that employees know how to report concerns in order of the employer to be able to deal with them. This is particularly important given that they may subsequently be found to be qualifying.  It seems to be pointing towards the employee’s reasonable belief of public interest that is the important factor.

At present, to be honest, Ms Morgan has not had her day in court and has not been able to demonstrate whether she has a case in the first place. Though, what is already being demonstrated is that the term public interest can have a wide meaning and it is the reasonable belief of the employee that is important.  Employers are minded to keep in mind that ‘general public’, as per Gov.UK’s definition, may in fact turn out to be an over-estimation of the number of people that need to be impacted for the whistleblowing to be qualifying under the Employment Rights Act.

What is now a very important case is due to be heard by the ET later this year, at which time, maybe employers in Great Britain will get some clarification on this terminology. Employers in Northern Ireland should also watch this case, bearing in mind that the ‘public interest’ wording is due to be inserted into the Employment Rights (Northern Ireland) Order 1996 in due course.



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