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Is it possible that an employee raising concerns about their own cramped working conditions could be protected under whistleblowing legislation, now that that legislation requires the employee to have a reasonable belief that the disclosure was in the public interest? Answer: yes.

Mrs Morgan worked for Mencap, in what she claimed to be cramped working conditions that had an adverse impact on her health. She complained two or three times, verbally and in writing, about those conditions. A short while later, she resigned. She brought claims of constructive unfair dismissal and automatic unfair dismissal on the basis of being a whistleblower.

The Tribunal struck out her claim for whistleblowing at a preliminary hearing. It took the view that her complaints were not a matter of public interest and could not be so even in her reasonable belief. It did so without hearing evidence from the employee, based largely on written submissions and an agreed bundle of documents.

The Employment Appeal Tribunal allowed the Claimant's appeal. It noted that what has to be determined in whistleblowing cases is whether a Claimant's subjectively-held belief [namely that disclosures were in the public interest] was, when viewed objectively, reasonable. That is a fact-sensitive question. So whilst there will be some cases where, even if the facts are taken at their highest in favour of the Claimant, the claim would not succeed on the legal basis on which it has been advanced, in other cases where there are disputes as to the facts, a resolution of those facts is required before a case can be dismissed. The Appeal judge took the view that in this case the Tribunal judge had not taken the facts at their highest, and that the Claimant's assertions should have been tested by evidence before a decision was taken. She therefore sent it back to the Tribunal for a hearing of the evidence before a different judge.

This is another case in a growing line of cases about what sort of disclosures might satisfy the public interest test [introduced into whistleblowing legislation in 2013]. These cases suggest that despite the intentions behind the introduction of a public interest test, the law in practice has changed very little, such that a worker's complaint about their own contract or working conditions could potentially meet the public interest test. See my earlier blog. The Court of Appeal is due to hear the appeal in one of those cases, Chesterton Global Ltd v Nurmohamed, in October 2016 – watch this space.

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