Employment Review: June 2015 – Public interest test in whistle blowing claims

The recent case of Chesterton Global Ltd and Anor v Nurmohamed is the first appeal case since the law was amended in 2013 and considers the issue of what amounts to a disclosure “in the public interest.”

A director and employee of Chesterton Global Ltd complained to senior management that the company’s profit and loss figures were being manipulated with a view to benefiting the shareholders. The employee alleged the inaccurate figures personally affected his commission payments as well as approximately 100 fellow employees who also suffered a similar loss. The employee was later dismissed and the Employment Tribunal upheld his claim that he had been automatically unfairly dismissed for making a public interest disclosure.

The employer appealed, claiming that there was no public interest and that the employee was mainly concerned for his private interests, being the impact on his own commission payments.

The EAT held that although the employee’s own contract had arguably been breached, the matter complained about also affected a sufficiently large group to provide a public interest element. They added that the test is whether the worker making the disclosure had a reasonable belief that it was in the public interest. There does not have to be an actual public interest element, as long as the worker believes on an objective basis that there is.

Comment

Although the tightening up of the law in 2013 was good news for employers, it was argued that requiring workers to demonstrate whether or not a disclosure is in the public interest would present a significant hurdle for workers making whistle blowing claims. However, this recent decision suggests that tribunals may be able to take a rather flexible view of the public interest test. Therefore, to the extent that the public interest test did place an additional hurdle in the way of whistle blowers, the EAT appears to have set that hurdle at a fairly low level. The EAT was satisfied that a 100 employees was a sufficient section of the public.

Employers should therefore be mindful before dismissing workers who have made complaints or raised grievances which appear to relate to their personal interests but which could potentially affect others. Complaints should not be disregarded by employers on the basis that they do not perceive that there is a public interest element; employers should consider the facts and assess whether on an objective basis, the worker has reasonable grounds for believing there is a public interest issue. If the worker does hold a reasonable belief, then the public interest test can still be satisfied even if the basis of the public interest disclosure is incorrect or there was no actual public interest in the disclosure being made.

A further cautionary point for employers is that as a result of the 2013 amendments, the “good faith” test from whistle blowing legislation was also removed. Therefore, a worker no longer needs to establish that they were acting in good faith when making a qualifying disclosure in order for that disclosure to be protected.

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