The significance of good faith & public interest in whistleblowing claims

Our employment experts take a look at the significance of good faith and public interest in relation to whistleblowing claims.

Under the Employment Rights Act 1996 (‘ERA’), making a protected disclosure is fundamental to someone receiving whistleblowing protection.

Two concepts play distinct but critically important roles in determining whether a disclosure is protected and how claims may be determined by tribunals, particularly where disclosures arise from workplace conflict. These include:

• good faith
• public interest.

Laurels Family Assessment Ltd v Kay (‘Kay’) and Bibescu v Clare Jenner Ltd t/a Jenners (‘Bibescu’) expand on these concepts and highlight their importance.

Good faith

Under the ERA, a disclosure does not need to be made in good faith to qualify as a protected disclosure. Therefore, even where a disclosure is driven by ulterior motives – such as deflection of criticism or personal advantage – it may still attract statutory protection. This principle was affirmed in Bibescu.

Ms Bibescu was an accountant with ongoing performance concerns. She raised issues regarding her work being reviewed by a non‑qualified subcontractor who had previously been disqualified as a company director. Following the disclosure, she was dismissed.

At first instance, the Employment Tribunal (‘ET’) placed significant emphasis on Ms Bibescu’s personal motivation (to avoid dismissal). On that basis, it concluded that her disclosures were not made in the public interest.

On appeal, the Employment Appeal Tribunal (‘EAT’) held that the ET’s approach was legally flawed. It emphasised that motive is distinct from belief.

Instead, the correct question that should have been asked and considered was whether the claimant reasonably believed that the disclosure tended to show wrongdoing, and that it was made in the public interest. The tribunal’s failure to keep these concepts separate amounted to an error of law.

Although good faith is not determinative at the liability stage, it remains relevant at remedy stage. Under s.123(6) ERA, compensatory awards may be reduced by up to 25% if a disclosure is found to have been made in bad faith, acting as a substantial financial deterrent.

Public interest

By contrast, the requirement that the worker reasonably believes the disclosure is made in the public interest is a mandatory statutory threshold under s.43B ERA.

In Kay, the tribunal accepted that concerns about a colleague’s alleged drug use in the context of work involving vulnerable families reasonably engaged broader health and safety considerations, extending beyond a purely personal grievance. That reasonable belief was sufficient to satisfy the public interest test.

The significance of Bibescu lies in the EAT’s clarification of how this test must be applied. The tribunal had incorrectly substituted its own assessment of whether the disclosure was sufficiently “public‑spirited” rather than examining whether the claimant herself reasonably believed that it was in the public interest. This error led the EAT to remit the detriment claim for reconsideration.

These decisions confirm that, although the public interest requirement is rooted in the worker’s subjective belief, the tribunal’s task is to apply an objective test of reasonableness to that belief. Protection will therefore turn on what the worker reasonably believed, rather than the tribunal’s own assessment of the disclosure.

If you have any questions about the topics discussed above, please don’t hesitate to get in touch with employment law experts.

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