Whistleblowing and the public interest
Public Interest Disclosure is in the public interest if it is in the reasonable belief of the employee making it, says the Employment Appeal Tribunal in Chesterton Global Ltd v Nurmohamed.
The public interest disclosure (otherwise known as whistleblowing) provisions inserted into the Employment Rights Act 1996 provide protection from detriment to workers who make protected disclosures to their employer or other specified people. The provisions have been subject to much attention since they were introduced in 1998. This is not surprising: they were a response to a number of high-profile incidents, such as the 1987 Zeebrugge ferry disaster in which 193 people died and the Piper Alpha oil platform explosion in 1988, in which 167 people died. Inquiries suggested that deaths could have been prevented if concerns had been reported earlier. The intention of the legislation was that workers should not fear recrimination for reporting wrongdoing at work.
More recently, some judgments had left the provisions open to accusations that they could be abused; most notably the case of Parkins v Sodexho Ltd, where it was held that an employee’s complaint that his own contract had been breached was capable of being a public interest disclosure (a breach of a legal obligation being one of the relevant subject matters for a protected disclosure).
On the language of the statute, this was undoubtedly the correct decision, although it was not the intention of the legislation.
Changes to whistleblowing law
The government legislated to close this perceived loophole and make other changes to the legislation in 2013. Specific provisions were made that, for a disclosure to be protected, it must be “in the public interest”. Importantly, the disclosure must be in the public interest “in the reasonable belief of the worker making the disclosure.”
This change was made with effect from 25 June 2013. It is only now that we have the first appeal-level decision on how this new requirement should be interpreted, in the case of Chestertons.
Employment Appeal Tribunal
Mr Nurmohamed was director of the Mayfair office of Chestertons, a well-known London estate agent. He raised concerns that he believed his employer was deliberately misstating £2-3million of actual costs and liabilities through the entire office and department network, which affected his earnings and those of one hundred other managers, thereby breaching a legal obligation owed to them. The Employment Tribunal upheld his claim; the employer appealed to the Employment Appeal Tribunal (EAT).
The appeal turned on the meaning of “in the public interest”. The EAT started by reminding itself of the balance that must be struck when considering cases of this type, between (a) promoting the public interest in detection, exposure and elimination of wrongdoing and (b) protecting the interests of employers and employees, in particular the employer’s legitimate confidentiality expectations.
The EAT went on to emphasise that the introduction of the public-interest element was designed to remedy the perceived loophole that a worker could rely on a breach of their own contract alone to found a claim for breach of the whistleblowing provisions.
The EAT confirmed that the question in such cases is “whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest.” In other words, it is not for the tribunal to consider for itself whether it believes the disclosure is in the public interest; instead, it must examine the worker’s beliefs and consider whether they were objectively reasonable. The tribunal might feel that there is no public interest and where this is so, it will inevitably make it harder for the employee to argue that he had a reasonable belief that there was a public-interest element, but it must nonetheless consider the situation from the employee’s perspective. This approach follows existing case law on the issue of reasonable belief (Babula v Waltham Forest College) and surely must be correct, particularly considering the nebulous concept of ‘in the public interest’.
The EAT also considered whether the hundred managers affected by the misconduct alleged by Mr Nurmohamed amounted to a sufficient section of the public for the purposes of the provisions. They felt that it did; Mr Nurmohamed plainly had more than simply himself in mind when he made his disclosures and “a relatively small group may be sufficient to satisfy the public interest test.” Accordingly, Mr Nurmohamed did not fall foul of a provision which had been intended to prevent people relying on breaches of their own contract of employment, which only affected them to found claims under the whistleblowing provisions.
The EAT also expressed the view that the fact that Chestertons was a private company, as opposed to a public body, was relevant for these purposes.
The upshot was that the employer’s appeal was dismissed and Mr Nurmohamed’s claim succeeded, as it had at tribunal.
Points to note
In conclusion, it seems that the public interest provision will be interpreted fairly widely, to the benefit of claimants and in keeping with the legislation’s purpose of being to encourage workers to expose wrongdoing and dangers in the workplace through appropriate channels. One interpretation is that, as long as a disclosure is not entirely in the interest of the worker making the disclosure – as long as it affects others to some degree – it will be in the public interest. No doubt there will be future case law on how close to a solely private interest one can get before falling foul of the provisions. Watch this space!
Posted on Apr 21st, 2015 by Lyons Davidson