This month has seen the first reported appellate decision on the new "public interest" test under UK whistleblowing legislation – see further comment below. We are also expecting to receive the Woolies' decision on the meaning of 'establishment' in collective redundancy situations from the European Court of Justice at the end of this month.
Whistleblowing and the "public interest" test
The Employment Appeal Tribunal (EAT) has handed down its judgement in the case of Chesterton Global Ltd (trading as Chestertons) & Others v Mr M Nurmohamed. This case provides the first decision by a Tribunal on what constitutes "in the public interest".
In order to be protected against detriments or dismissal under the whistleblowing legislation, a worker must have made a "qualified" disclosure. This means a disclosure of information which, in the reasonable belief of the worker, is made in the public interest and shows that one of the six specified types of wrongdoing has taken place, is taking place or is likely to take place.
When the whistleblowing legislation was introduced in 1998, it did not include a test for "in the public interest" – this test wasn’t introduced into the legislation until 2013, to counter-act the effect of a "qualified" disclosure being able to cover a breach of the worker's own contract of employment, even when there were no wider public interest implications.
In this case, Mr Nurmohamed was employed as a senior manager at Chestertons. He made numerous "qualified" disclosures to his Area Director following changes to the Company's commission structure. Mr Nurmohamed believed that the change in structure had a negative impact on 100 managers' (including his) commission income, which subsequently made the Company more profitable.
Mr Nurmohamed was dismissed and brought various claims, including whistleblowing. The Employment Tribunal (ET) found that he had been automatically unfairly dismissed and that he had been subjected to detriments as a result of his "qualified" disclosures. The ET held that the disclosure did not have to be in the interest of the public as a whole; if this was the case, Mr Nurmohamed's case would undoubtedly have failed.
The ET concluded that it was Mr Nurmohamed's reasonable belief that his disclosures were in the interests of the 100 managers' (including himself) who were affected and that this was a reasonable section of the public to satisfy the public interest test.
Chestertons appealed on the grounds that:
(a) disclosures made in the interests of 100 managers was not in the public interest; and;
(b) it was for the ET to determine objectively whether or not the disclosures were in the public interest and it failed to do so.
The EAT dismissed the appeal and upheld the ET's decision. It agreed with the ET that it was not necessary to show that a disclosure was of interest to the public as a whole as it was inevitable that only a section of the public would likely be affected by any disclosure, in any event.
Further, the EAT found that public interest is a "matter of belief, not fact" which means that a disclosure does not actually need to be in the public interest at all, as long as the whistleblower believed that it was. It was satisfied in this case that Mr Nurmohamed believed that his disclosures were in the public interest.
What does this mean in practice?
This is an important decision on whistleblower protection. The intention of the public interest test was to prevent individuals from bringing claims based on breaches of their own contracts of employment. However, if the test is too onerous, it could easily prevent workers from issuing claims. What this decision demonstrates is that the EAT has kept the bar low in terms of the hurdles workers have to get over in order to be protected by the whistleblower legislation. It is widely considered by practitioners to be a sensible and pragmatic decision.