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Whistle while you work but only if it’s in the public interest…

Blowing the whistle can be the weapon of choice for senior executives as part of their exit strategy particularly if they do not have a discrimination card to play. Once they make a qualifying protected disclosure they acquire the right not to be subjected to any detriment for making that disclosure and any dismissal for doing so will be automatically unfair. Additionally the two year length of service requirement does not apply and any compensation awarded is not subject to the statutory cap.

WhistleblowingIn June 2013 changes were made to the test for a qualifying disclosure in the Employment Rights Act 1996, including a new requirement that a worker must reasonably believe that their disclosure was ‘in the public interest’. This new public interest requirement was introduced to close a loophole created by the case of Parkins v Sodexho under which workers were able to allege that their disclosure was protected under whistleblowing legislation, even though it related to their own personal employment contract.

Chesterton Global Ltd and anor v Nurmohamed

This case is the first appellate consideration of the extent of the ‘public interest’ test.

Mr Nurmohamed, the whistle-blower, was employed as Director at Chestertons’ Mayfair office of estate agents. He made three alleged protected disclosures to senior managers that Chestertons was deliberately overstating actual costs and liabilities which adversely affected the bonus calculations of 100 senior managers, including himself. He was later dismissed and subsequently brought a claim in the Employment Tribunal that he had been subjected to a detriment and automatically unfairly dismissed because he had made a protected disclosure. The Employment Tribunal found in his favour on both counts. Chestertons accepted that his dismissal had been unfair but appealed to the Employment Appeal Tribunal (EAT) on the basis that 100 managers was not a sufficient group to amount to the public and that the Tribunal did not objectively consider whether the disclosures were of real interest to the public.

The Appeal

The EAT upheld the Tribunal’s decision that Mr Nurmohamed’s allegation that Chestertons was manipulating profit and loss figures passed the ‘public interest’ test for whistleblower protection. This was despite the employee’s own contract having arguably been breached and his motivation in raising the allegation was the effect on his and other managers’ commission payments.

The EAT found that the matter complained about affected a sufficiently large group to provide a public interest element. They added it is not whether the disclosure itself is in the public interest but whether the worker making the disclosure had a reasonable belief that the disclosure is made in the public interest. The EAT mentioned that the sole purpose of the introduction of the words ‘in the public interest’ was to do no more than prevent a worker from relying on a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. The EAT commented that a relatively small group may be enough to satisfy the public interest test; what is sufficient will necessarily be fact sensitive. Notably the Tribunal’s decision was not undermined by the fact that Chestertons is a private rather than public company.

Its impact

What we have learnt so far is that disclosure can be made in the ‘reasonable belief it is in the public interest’ if it relates to a contractual dispute affecting a group of staff and not the wider public. Although it was recognised in this case that the person the whistle-blower was most concerned about was himself, the Tribunal was satisfied that he did have the other office managers in mind and concluded that a section of the public was affected.

It therefore seems that whistleblowing protection may still be available even where a worker’s primary concern is his own employment arrangements and it remains to be seen whether the public interest test is truly effective in filtering out complaints by those who use the whistleblowing provisions for the purposes of personal gain.

The decision should be a reminder that all employers in both the private and public sector should take care before disciplining or dismissing workers who have made complaints or grievances which might potentially involve a public interest element. It would be prudent to consider in every such case whether or not an individual’s concerns may be a qualifying disclosure within UK whistleblowing law and ensure that any qualifying disclosure is dealt with carefully within their whistleblowing procedure.

Find out about ‘Speak Out’  DWFs cost effective and confidential solution to help your employees, contractors or suppliers report concerns relating to your working environment.

If you have any questions about this blog or any other employment law issue please Get in Touch

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further