Protected disclosure and public interest

In Morgan v Royal Mencap Society the EAT has overturned an Employment Tribunal decision to strike out the employee’s claims relating to protected disclosures. The Claimant claimed that complaints about cramped working conditions posed a risk to her health and safety and as such were protected disclosures. The Tribunal struck out these claims at a Preliminary Hearing because there was no evidence from the Claimant that she believed that the disclosure was in the public interest. Therefore the Tribunal held that the claim must fail.

On appeal the EAT overturned the decision, commenting that a high threshold was required for whistleblowing claims to be struck out at a Preliminary Hearing. The EAT thought it was arguable that the employee’s complaints may have been made with a reasonable subjective belief that they were in the wider interest of employees generally and so could meet the public interest test as protected disclosures. The EAT considered that the questions of fact should be determined by hearing evidence and resolving factual disputes.

It will be interesting to see how the Court of Appeal deals with the public interest test in the Chesterton case later in the year.