Protected Disclosure: Rarely appropriate to strike out on 'public interest' grounds

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can a complaint about an individual employee's cramped working conditions be a protected disclosure for 'whistleblowing' purposes?

Yes, held the EAT in Morgan v Royal Mencap Society, overturning an employment tribunal's decision to strike out an employee's claims relating to protected disclosures.

The Claimant claimed that complaints about cramped working conditions posing a risk to her health and safety were protected disclosures. An employment tribunal struck out the claims at a preliminary hearing, with no evidence from the Claimant, since taking the Claimant's complaints at their highest, the Claimant would not have had a belief that the 'disclosure' was in the 'public interest' (see Chestertons), so the claims must fail.

The EAT reversed the employment tribunal's strike out, noting that for whistleblowing claims to be struck out at a preliminary hearing, a high threshold was required. It was reasonably arguable that the employee's complaints, even if she were the principal person affected, may have been made with a reasonable subjective belief that they were in the wider interests of employees generally, so could meet the 'public interest' test as protected disclosures. Such questions of fact should be determined by hearing evidence and resolving factual disputes.

The 'public interest' test may be considered by the Court of Appeal in Chestertons later in the year.