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Guidance on what the EAT considers as ‘public interest’ for whistleblower protection

Napthens - April 15th 2015

In a recent case Chesterton Global  and anor v Nurmohamed, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s (ET) decision that an Employee was protected by whistleblowing  legislation due to his disclosure being in the public interest, even though the motivation for disclosing the information was to protect a group of senior managers employed by a private company, including himself.

This is the first case to consider the meaning of “public interest” which was inserted into the whistleblowing  provisions of the Employment Rights Act 1996 (ERA) in June 2013.

The facts

In this case the Employee was a Director of a firm of estate agents. He highlighted concerns to senior managers that there were inaccuracies on the Company’s statements alleging that figures were being manipulated to benefit the shareholders. He suggested the inaccuracies would affect over 100 senior manager’s commission payments (which included him). He was later dismissed and he claimed  the dismissal was automatically unfair for having made a protected disclosure.

The ET held that his disclosure would be protected due to being a breach of legal obligations under section 43B ERA. They held that his disclosure satisfied the new criteria introduced in June 2013 that an employee must reasonably believe that the disclosure they are making  is in the “public interest” before it can be protected.

The tribunal acknowledged that there was no definition of ‘public interest’ in the new regulations and no case law clarifying the point. They however found that at the time of disclosure the Employee believed that the disclosure was in the interest of 100 or more senior managers and this was held to be a sufficient group of the public amounting to a public interest.

The appeal

The Employer appealed the decision but this was dismissed by the EAT. The Judge discussed the purpose of the amendments to whistleblowing protection, namely to prevent employees being protected for disclosures which “solely relate to themselves individually”. The Judge was satisfied in this case that whilst the disclosure would inevitably benefit the Employee himself he did have other senior managers in mind when making the disclosure and so amounted to a public interest.

It further explained that the point was not whether the disclosure was in the public interest but whether the employee ‘reasonably’ believed that their disclosure was in the public interest, which must be objectively justified. The EAT’s conclusion was not undermined by the fact that the Employer is a private rather than a public company.

What this means for you

When the new legislation was introduced in 2013, many employers believed this would reduce the number of successful whistleblowing claims particularly those where an employee was complaining about internal work matters which affected themselves.

This case however has made it clear that employees may well still gain the protection of whistleblowing legislation if they reasonably believe the disclosure to be in the public interest even where the disclosure does not extend to protecting  people outside a private company. All that seems to be required is reasonable belief and a sufficient number of individuals who may benefit from the disclosure.

Remember, an employee or a worker may bring a claim for whistleblowing regardless of qualifying services. As such were a dismissal is motivated by a complaint/grievance raised by an employee, consider whether or not it maybe caught by whistleblowing legislation.