What does “in the public interest” mean in the whistleblowing legislation?
This was the question faced by the Court of Appeal in Chesterton Global Limited v Nurmohamed.
An employee’s dismissal will be automatically unfair if the reason, or principal reason, for their dismissal is because they have made a protected disclosure, or “blown the whistle”. Also, employees and workers have the right not be subjected to a detriment on the grounds that they have made such a disclosure.
The “public interest” test
In order to qualify for protection, a disclosure must relate to one of the six types of “relevant failure”, for example, that there has been a breach of a legal obligation, or a danger to health and safety. The worker must have a reasonable belief that the disclosure tends to show one of those failures. Also, since 2013, a disclosure will only qualify for protection if the worker reasonably believes that the disclosure is made “in the public interest”. Before 2013, the “public interest” test did not exist. Instead, there was a requirement that the disclosure must be made “in good faith” by the worker. There was a series of cases where whistleblowers were able to successfully argue that an allegation that their own contract of employment had been breached was a qualifying disclosure. On the face of it, an allegation of this type only concerns the employee themselves. The introduction of the “public interest” test in 2013 was intended to reverse the effect of these cases.
The Chesterton case
The claimant made disclosures that his employer, an estate agency, had deliberately manipulated its accounts in order to reduce the amount of commission that he and 100 other senior managers would receive. The claimant was subsequently dismissed, and he claimed that his dismissal was automatically unfair because he had made qualifying disclosures. The claimant argued that he reasonably believed his disclosures were in the public interest. His employer argued that for something to be in the public interest, it must extend outside of the workplace, and in this case, it did not.
The Employment Tribunal decided that the disclosures met the public interest test, because the group of managers who the claimant believed to be affected by the alleged issue was, in the Tribunal’s view, a sufficient group of the public to amount to the matter being in the public interest.
The Court of Appeal agreed that, in the circumstances, the public interest test was satisfied, but said it was wrong of the Tribunal to concentrate just on the numbers of employees affected by the particular issue. The Court said that the focus should be on the nature of the disclosure. The Court said that it could not definitely rule out that a matter involving an allegation about breach of a group of employees’ contracts of employment could never be in the public interest; it would depend on a number of factors. The Court said that the following factors may be a “useful tool” in deciding whether the public interest test is met:
- The numbers in the group whose interests the disclosure served.
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than disclosure of a trivial wrongdoing.
- The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing.
- The identity of the alleged wrongdoer – the larger and more prominent the wrongdoer, the more that could engage the public interest.
What does this mean for employers?
Unfortunately, the Court of Appeal’s decision did not give us the clarity we were seeking about how to precisely assess if a disclosure is in the public interest. The crux of the Court’s decision is that there are no hard and fast rules. This will leave employers having to assess the issue on a case by case basis, which may not be easy. It would not be unreasonable for employers to still be wondering how the disclosure in the above case had any significance for the public as a whole.
At first sight, it looks like we might not have really moved on from the pre-2013 cases that were decided under the “good faith” test, and that the threshold could remain low for employees to show public interest.
Employers should examine carefully any alleged protected disclosure, and should make sure they have appropriate procedures in place to address employees’ concerns. The best advice is that employers should make sure that any dismissal or other treatment of a member of staff is not linked to any alleged protected disclosure, but is based on other, legitimate reasons, which the employer can evidence.
Please get in touch with our Employment team if you have any questions about how this might impact your business.