Whistleblowing: Complaining about cramped working conditions can satisfy the public interest test

In Morgan v Royal Mencap Society, the EAT held that a complaint about an employee's own cramped working conditions could meet the public interest requirement of a protected disclosure.

In order to succeed in a whistleblowing claim, a worker does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is objectively reasonable is enough. It does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.

Further, the law now states that the disclosures of information must not merely be related to a worker's own contract but must contain a public interest element and this final element was tested in the current case. Here it was clarified that the disclosures did not have to be in the public interest, but the test was actually whether the worker making it held that belief and whether it was reasonable for them to do so.

Ms Morgan explained that she believed her disclosures were in the public interest because Mencap is a charity, financially supported by the public, and the public would therefore be interested to know how it treated its employees. She further argued that the issues she raised potentially presented a threat to the health and safety of others.

Her case was initially struck out by an employment at a preliminary hearing but the EAT has reinstated it. It is yet to be heard again at the time of this post and may still fail following oral evidence. Further, the case of Chesterton is due to be heard this year which, again, will clarify this point. However, in the interim it appears that a disclosure of information may satisfy the public interest element if if a worker believes that it does so.