Following the introduction of the Enterprise and Regulatory Reform Act 2013, the rules on whistleblowing require disclosures made on or after 25 June 2013 to be in the public interest. This "public interest" test was introduced to reverse the effect of previous case law (Parkins v Sodexho Limited [2002] IRLR 109) so that a worker cannot rely on a breach of his own employment contract where there are no wider public interest implications.
An Employment Appeal Tribunal (EAT) decision published this month (Chesterton Global Limited (trading as Chestertons) and another against Nurmohamed UK EAT/0335/14) has made it clear that it is not necessary to show that a disclosure was of interest to the public as a whole (on the basis that it is inevitable that only a section of the public will be affected by a given disclosure).
In the Chesterton case, Mr Nurmohamed was employed as a senior manager at the Mayfair branch of Chestertons, the estate agents. The Company made changes to its commission structure and, on three occasions between August and October 2013, Mr Nurmohamed made disclosures to the Area Director and complained about the manipulation of the Company's accounts (overstatement of the Company's costs) and the adverse effect this had on his commission structure.
Mr Nurmohamed was dismissed and an Employment Tribunal upheld his claim for automatic unfair dismissal and found that Chestertons had subjected him to detriments on the grounds that he had made a protected disclosure.
Chestertons appealed the finding that the disclosure was made in the public interest. Their arguments were as follows:-
1. It could not be said that disclosures made in the interest of 100 senior managers were "in the public interest" as this was not a sufficient section of the public;
2. It was for the Tribunal to determine objectively whether or not the disclosures were of real public interest and it failed to do so.
The EAT dismissed the appeal and found as follows:
1. Chesterton's argument was that Mr Nurmohamed's disclosures were personal, rather than public, and that his dispute was of a private nature. The finding at first instance was that Mr Nurmohamed was mostly motivated and concerned about his own income. However, Chesterton's argument was rejected by the EAT which was satisfied that the protected disclosures concerned the manipulation of accounts which potentially adversely affected the bonuses of 100 senior managers. While Mr Nurmohamed was principally concerned with his own position, the Tribunal was satisfied that he did have the other senior managers in mind. He believed that Chestertons was deliberately misstating its accounts throughout its sales department. This led the Tribunal to conclude that a section of the public would be affected and that the public interest test was satisfied as Mr Nurmohamed had a reasonable belief that his disclosure was in the public interest.
2. The correct question is whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest and there was no need to determine objectively whether a disclosure is of real interest to the public.
This recent interpretation of the words "in the public interest" will help to prevent the erosion of workers' rights in relation to whistleblowing. It is clear from the facts of this case that there will, on occasion, be an overlap between matters of public interest and areas of private dispute and that the two are not mutually exclusive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
