In 2013 the wording of the Public Interest Disclosure Act was amended to address concerns that employees were ‘blowing the whistle’ about matters of pure self-interest arising from alleged breaches of their own contracts of employment in order to come within the ambit of the protection provided. As a result, workers now have to show that their disclosure was ‘in the public interest’. But what does this mean?
The first appeal case to address this provides some guidance.
The relevant facts of Chesterton Global Ltd v Nurmohamed are that Mr Nurmohamed was employed as senior manager at the Mayfair branch of the estate agents. The organisation made changes to the commission structure it paid its staff and, as this affected Mr Nurmohamed’s pay packet, he raised a number of complaints in which he alleged that the company was deliberately supplying inaccurate profit and loss figures in order to justify paying less commission to him and some of his colleagues. Shortly afterwards, he was sacked and brought a number of claims alleging that he had suffered a detriment on account of having raised protected disclosures.
The first question the Tribunal had to consider was whether these disclosures satisfied the public interest test. Mr Nurmohamed did not couch his complaints in purely personal terms – instead, he alleged that these changes affected 100 senior managers and as such were in the 'public interest'. The Tribunal agreed, even though it accepted that Mr Nurmohamed was motivated by the decrease in his own income.
The Employment Appeal Tribunal (“EAT”) upheld this decision and was not persuaded that the dispute was essentially one that could be categorised as ‘private’. It said that the 100 managers who were also affected, were enough to constitute ‘public’.
Is 100 the benchmark or could smaller groups qualify as ‘public’?
Unfortunately, the EAT did not express any view about how small a group could be to qualify. However, this decision suggests that the bar for meeting the public interest test is set at a relatively low level and “canny” workers are likely to try and demonstrate that their particular “gripe” does affect other people, even if there are relatively small numbers involved.
It is likely that, the success of this approach will depend upon how serious the alleged breach is i.e. it may be in the public interest to complain about significant legal breaches even if they only affect a small number of individuals, but larger numbers might be required for less serious issues.
How will this affect other whistle-blowing claims?
Employees still have to demonstrate that they have a reasonable belief that their disclosure is in the public interest. This introduces an element of subjectivity to determine both the concept of public interest, and in the assessment of the reasonableness of the belief of the worker. We know from previous cases that the worker may hold a reasonable subjective belief, even if this turns out to be wrong.
Workers are likely to be able satisfy the public interest test when making disclosures about breaches of health and safety in the workplace, or about alleged breaches of the Working Time Regulations, where they can argue that they are not the only victim, or potential victim of the wrongdoing.
It remains to be seen if the public interest test will have much practical impact in filtering out those workers who seek to abuse the whistleblowing provisions for personal gain.