Whistleblowing - first EAT decision on the meaning of “in the public interest”
In a significant whistleblowing decision, the EAT, for the first time, has considered what is meant by the words “in the public interest”. In the case of Chesterton Global Limited v Nurmohamed the EAT held that a relatively small group may be sufficient to satisfy the public interest test.
It was back in June 2013 that amendments were made to the definition of what constituted a “qualifying disclosure”. Specifically, that the individual making the disclosure had a reasonable belief that disclosure was in the public interest. The reason for this change was to correct an anomaly of the original legislation which omitted to refer to the public interest test and to ensure that individuals making disclosures did not do so simply because of concerns about their own employment.
Mr Nurmohamed worked as a senior manager of Chesterton’s Estate Agents. Certain changes were made to the commission structure and between August and October 2013 he made disclosures to the Area Director and HR Director. It was his view that the company accounts were being manipulated and inaccurate profit and loss figures were being sent to the company’s accountants. The changes had an adverse effect on the commission income of 100 senior managers including Mr Nurmohamed.
Mr Nurmohamed was subsequently dismissed and the Employment Tribunal held that the dismissal was related to the disclosures he had made. As a result, the dismissal was automatically unfair. Further Mr Nurmohamed had suffered a detriment because of making the disclosures. The Employment Tribunal concluded that although the primary motivation was Mr Nurmohamed’s own commission arrangements, the fact that 100 senior managers were affected constituted a sufficient group of the public for the matter disclosed to be in the public interest.
Chesterton appealed that decision on the basis that 100 senior managers was not a sufficient section of the public and the Employment Tribunal had failed to assess whether the disclosures were of real public interest.
The EAT dismissed the appeal. Even though Mr Nuromohamed’s concerns about the changes in commission structure were primarily personal, the fact that 100 senior managers were affected was enough to establish the public interest test. This was not simply a private dispute. It was not necessary to show that disclosure had to be of interest to the entirety of the public. Indeed it was inevitable that only a section of the public would be directly affected by any given disclosure. Mr Nuromohamed genuinely believed that the other senior managers would be affected by the change in the commission structure and a section of the public was therefore affected. Accordingly, the public interest test was satisfied. As the EAT stated, a relatively small group may be sufficient to satisfy the public interest test and what is sufficient is fact- sensitive.
Chestertons are appealing this decision and the Court of Appeal will hear the case between 1 October 2015 and 1 February 2016.
There is further whistleblowing news. Public Concern at Work recently published a report Is the law protecting whistleblowers? This provides an analysis of Employment Tribunal judgments insofar as they relate to whistleblowing for the period 2011 -2013 and the report shows:
- A 20% drop in the number of whistleblowing claims since the introduction of Employment Tribunal fees
- 53% of claimants are not represented by a lawyer
- 66% of claimants are from the private sector
- 21% of claims relate to the health/social care sectors
- 91% of whistleblowers first raise their concern internally