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In a recent decision, the Employment Appeal Tribunal (EAT) considered the 'public interest' test for whistleblower protection.
Following a change in the whistleblowing legislation in 2013, a disclosure will only qualify for protection if the whistleblower believes the disclosure to be in the public interest and that belief is objectively reasonable. This new public interest requirement was introduced to prevent a worker from bringing claims where the complaint only related to a breach of his own contract of employment and where there are no wider public interest implications.
In Chesterton Global Ltd and anor v Nurmohamed, Mr Nurmohamed was employed as a director by Chesterton Global Ltd (CG Ltd), a firm of estate agents. He claimed that he was unfairly dismissed following protected disclosures that he made to the area director and HR director that CG Ltd was manipulating the figures in its accounts. This manipulation meant that around 100 senior managers (including Mr Nurmohamed) received lower commission payments and therefore suffered a detriment.
The employment tribunal upheld Mr Nurmohamed's claim. It found that the disclosures were made in his reasonable belief that they were in the interest of the 100 senior managers, and that this was a sufficient group of the public to amount to a matter in the public interest.
CG Ltd appealed to the ET on two grounds: first, that the group of 100 senior managers was not a sufficient group of the public to amount to being a matter in the public interest; and secondly, that the tribunal had failed to determine objectively whether or not the disclosures were of real public interest.
The ET rejected both grounds of appeal. Looking at the facts of the case, it found that while Mr Nurmohamed was predominantly concerned about himself, he did have the other 100 senior managers in mind when making the disclosures, and this was a sufficient section of the public to satisfy the public interest test. Importantly, the EAT highlighted that the test of whether a whistleblowing disclosure is 'in the public interest' is one of belief, not of fact - in that, a disclosure need not actually be in the public interest as long as the whistleblower reasonably believes it is, and that belief is objectively reasonable.
This judgment is the first appellate decision on the meaning of 'in the public interest' in the amended whistleblowing legislation. It shows that what is required to satisfy the public interest test is fact-specific and a reasonable belief that the disclosure affects a relatively small group of people (in this case 100 employees) may be sufficient. In this case, the EAT has set a relatively low hurdle for whistleblowers to satisfy the public interest test.
This decision serves as a reminder to both private and public sector employers that care should be taken before a worker who has made a disclosure is dismissed. Even if a public interest element is not immediately apparent, employers should consider whether, on an objective basis, the worker has reasonable grounds for believing that the disclosure is in the interest of a certain section of the public.