Whistleblowing disclosure was made in the public interest despite its private purpose (Dobbie v Paula Felton t/a Feltons Solicitors)

In a whistleblowing claim brought by a solicitor who had alleged to his firm that a client was being overcharged, even though his primary purpose in making that disclosure was private in nature, it still passed the test of showing that it was ‘made in the public interest’ because the nature of the wrongdoing disclosed, and the identity of the wrongdoer, demonstrated the requisite public interest element, according to the EAT.

Dobbie v Paula Felton t/a Feltons Solicitors (UKEAT/0130/20/OO)

What are the practical implications of this case?

This case primarily considers the proper test for determining whether a disclosure was ‘made in the public interest’, which is a necessary factor for it to acquire any protection under whistleblowing law.

The EAT closely considers the key Court of Appeal authority in this area, Chesterton Global v Nurmohamed. The judge lists what he considers to be the key elements of the test set out there, and then goes on to add certain additional observations of his own on factors to be taken into account when applying the test.

The case’s main significance is that it makes clear that the public interest test can sometimes be made out even where the disclosure is made in circumstances which suggest that the purpose of making it was primarily private in nature.

The facts of the case are a useful illustration of circumstances in which a disclosure made for ostensibly ‘private’ reasons can nonetheless pass the public interest test. The claimant was a consultant solicitor who emailed his firm to set out his concerns that a particular client had been overcharged. It appeared from the context that his primary motivation in doing so was to avoid the client losing out on recovering part of his costs from the other side in the litigation when they were assessed by the court after the case. The employment tribunal thought that that made the disclosure private in nature.

The EAT disagreed, noting that:

• the tribunal failed to focus on the nature of the information in the disclosure. Its finding that the claimant reasonably believed that the client was being overcharged signified not only a breach of the firm’s contractual obligations to its client but also a potential breach of regulatory requirements that might result in disciplinary proceedings. Such a disclosure would be expected to raise matters of public interest because the regulations are there to protect the public;
• the tribunal did not analyse whether the public interest was affected by the identity of the alleged wrongdoer. The fact that the respondent was a firm of solicitors meant that, in the public interest, it was subject to high requirements of honesty and integrity;
• the tribunal introduced, in the test it applied, a requirement for a worker to believe that the disclosure would enhance the protection of the public or a section of the public, i.e., that there be a group that is likely to be protected. There is no such a requirement as a matter of law;
• the disclosure did not cease to be protected because it was done in the context of him arguing that this issue was important because of the effect it might have on the subsequent assessment of the client’s costs.

Case details

• Court: Employment Appeal Tribunal
• Tribunal: His Honour Judge Tayler, sitting alone
• Date: 11 February 2021

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