Is a public interest test for workplace whistleblowing in society’s interest?

The aim of the paper is to consider the efficacy of requiring a public interest test to be satisfied before protection is afforded to workers who blow the whistle under Part IVA of the Employment Rights Act 1996 (ERA 1996).

Not all definitions of whistleblowing require there to be a public interest in the disclosure of information. To illustrate how the expression “public interest” has been used in this context, the common law defence to an action for breach of confidence is outlined. The paper then explains how the concept of “public interest whistleblowing” evolved in other jurisdictions. It also examines the jurisprudence of the European Court of Human Rights to see if it helps us to apply the public interest test. Finally, this test is considered in the context of UK legislation.

Several sources of uncertainty are identified. These include the fact that personal and public interest matters may be intertwined and that an organization may encourage the internal reporting of concerns about wrongdoing that do not have a public dimension to further its private interests. One obvious result of uncertainty is that those who are not legally required to report wrongdoing may choose not to do so and society may be denied important information; for example, about serious health and safety risks or financial scandals.

It is suggested that the public interest test should be removed from Part IVA ERA 1996. However, this test is likely to remain for a while, so nine recommendations about how it should be interpreted are made.