Whistleblowing: when might a disclosure be in the public interest?

When might a member of school staff be making a disclosure in the public interest and so be protected under employment legislation?

Staff who "blow the whistle" have special protections. If they are dismissed because they made the disclosure, this will be automatically unfair. They are also protected from suffering detriments because they blew the whistle (for example not being promoted or being refused training opportunities).

Under the legislation, a disclosure will only qualify for protection where the "whistleblower" has a reasonable belief that it was made in the public interest (the "public interest test") and that the information given tends to show (amongst other things) that someone has breached or is likely to breach a legal obligation, or that someone's health and safety is or likely to be endangered.

The "public interest test" was added to the legislation in 2013 to ensure that employees would not be protected when the disclosure concerned only a breach of the contract of employment by the employer. There is, however, no definition in the legislation of what is meant by the public interest.

To confuse matters, recent case law has suggested that a disclosure may reasonably be believed to be in the public interest when it concerns only a number of employees, as these employees are a sub-section of the "public". In one case, 100 senior managers were found to be a sufficient section of the public to meet the test. (The appeal in this case will be heard in the Employment Appeal Tribunal (EAT) this Autumn.) In another case, the EAT found that one charity employee's concerns about her cramped working conditions might be enough to meet the test.

A culture of openness and responsiveness is essential within the education sector, given its considerable safeguarding and compliance obligations and the weight of reputational risk. Schools should put in place a clear policy which sets out how a member of staff can blow the whistle and should ensure all staff are familiar with the correct procedure. It may be difficult to decide whether a complaint amounts to "whistleblowing" and those who may receive such disclosures should be trained in how to respond. The school or academy trust as a whole should ensure that disclosures are taken seriously and that appropriate action is taken following a thorough investigation.