A year on from an important change in Manx employment legislation, whistleblowing remains in the public eye following the establishment of a Tynwald select committee on whistleblowing policy implementation.

The April 2025 changes to our whistleblowing law included adding a public interest requirement to the definition of a qualifying disclosure. This meant that a whistleblower must reasonably believe the information is disclosed in the public interest. Thus a person reporting, for instance, a breach of a legal obligation in their own contract of employment might struggle to contend that this was in the public interest so their disclosure would not qualify as protected. But what is in the public interest?

Generally, Tribunals assessing this point when faced with whistleblowing related claims look at whether the person disclosing has reasonable grounds for believing the information has or is likely to have an impact on other people and therefore is not simply a personal grievance. But there is no fixed legal definition of the public interest so each case is assessed on its merits. The new law in the Isle of Man became effective on 1 April 2025 with transitional arrangements not retrospectively applying the additional public interest requirement. Manx judicial commentary on this requirement is therefore thin on the ground but there may be some Tribunal complaints in the pipeline which might soon result in relevant judgments.

Judgments from England and Wales, where the public interest requirement has been in place since 2013, shed light on how this is assessed. In a 2017 case in England four factors were identified as relevant to assessing whether a disclosure was made in the public interest, namely:-

1. How many were in the group whose interests the disclosure served.
2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
3. The nature of the wrongdoing disclosed.
4. The identity of the alleged wrongdoer.

Workers and employees who report a qualifying wrongdoing enjoy statutory protection from unfair dismissal or detrimental action (generally some form of poor treatment). In some cases it will be clear that a disclosure is reasonably considered in the public interest, for instance, reporting acts of damage to the environment by the employer. The grey areas tend to come when the alleged wrongdoing only really affects the discloser. But even then, it is material whether the issue reported might have the potential to affect others such that the public interest requirement could yet be satisfied.

A recent English Employment Appeal Tribunal decision reviewed when a self-interested disclosure might fail the public interest test. It found that believing the disclosure to be in the public interest need not be the predominant motive for making the disclosure (which in that case appeared to be discrediting a colleague). Thus it is possible that a whistleblower can have a self-interested motive yet might also satisfy the public interest requirement. The threshold for this fairly new test in Manx law errs on the lower side, judging from jurisprudence that continues to emerge from England and Wales. It will be interesting to see how the Isle of Man Employment & Equality Tribunal tackles this issue.

Advocate John T Aycock is head of the M&P Legal employment team with 35 years’ experience of advising on employment law in three jurisdictions. This article is not legal advice, you should take advice on each specific case.

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