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What does “in the public interest” mean for the purposes of Whistleblowing?

BY Fiona McBeath
Employment law
BG Purple

Despite the fact that protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998, there was no “public interest” test in the legislation for many years.

Prior to June 2013, a “qualifying disclosure” meant a disclosure of information made in good faith which demonstrated one or more of the six specified types of wrongdoing. The lack of a “public interest” element created a loophole which meant that an employee could argue that a disclosure regarding a breach of their own contract of employment constituted a qualifying protected disclosure. These were the very circumstances of Parkins v Sodexho Ltd [2002] IRLR 109 in which the Claimant successfully mounted this argument. 

The loophole was closed with the introduction of the Enterprise Regulatory Reform Act 2013. The Act inserted the words “in the public interest” into section 43B(1) of the Employment Rights Act 1996 and removed the requirement for a disclosure to be made in good faith. Unfortunately, the amendment didn’t give any further guidance on what “in the public interest” means. In the absence of a definition in the legislation, we must turn to case law for assistance and the EAT has helpfully provided guidance in the recent case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed UKEAT/0335/14.  

In this case the Claimant, Mr Nurmohamed, raised concerns with his area director and HR director that Chestertons was manipulating company accounts to show inaccurate profit and loss figures and that this had resulted in an adverse effect on his commission income.  The Claimant alleged that a further 100 senior managers would also potentially be affected by the company’s actions.  Mr Nurmohamed was subsequently dismissed and he raised a number of tribunal claims against his previous employer.

An employment tribunal found that he had been automatically unfairly dismissed and that he had been subjected to detriment on the grounds of having made protected disclosures.  The tribunal acknowledged there was a lack of authority with regards the meaning of “in the public interest” but it concluded that a disclosure did not require to be of interest to the general public as a whole before it would be protected. This was on the basis that a disclosure would “inevitably” tend to directly affect only a section of the public.  The tribunal concluded that, in this particular case, the Claimant had a reasonable belief that his disclosures were in the interest of 100 senior managers and that this was an adequate group to amount to the matter being “in the public interest” even though the Claimant was mostly motivated by concern about his own commission income.  

On appeal, Chesterton’s tried to argue that Mr Nurmohamed’s disclosures were of a personal nature rather than in the public interest and that the fact that 100 other senior managers were affected was irrelevant.  The EAT rejected this argument and upheld the tribunal’s decision.  The EAT noted that the tribunal had been satisfied that Mr Nurmohamed had the other senior managers in mind when he made his complaints and that the Claimant believed that his previous employer was deliberately misstating its accounts. 

Whilst the government may have legislated with the intention of restricting the scope of the whistleblowing legislation through the introduction of a “public interest” hurdle for Claimants to overcome, this EAT decision has set the bar relatively low in terms of the test a whistleblower will be required to meet before their disclosures can properly be deemed to be “in the public interest”.

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