Whistleblowing – What is in the public interest?

HR Directors and CEOs will be aware that it is no longer so easy for an employee to use whistleblowing legislation, which was originally intended to protect those who were acting in the public interest, for their own personal benefit. The Government introduced an express requirement that the disclosure be in the public interest in June 2013. But what was the effect of that? The Employment Appeal Tribunal (EAT) has now considered the effect of this legislative change and ruled that as long as the worker has a reasonable belief that the disclosure is made in the public interest, then they will be protected under the Act. The change in the legislation in 2013 did no more than prevent a worker from opportunistic use of the whistleblowing legislation for his own private purposes.

Despite the fact that the statute dealing with whistleblowing is called the Public Interest Disclosure Act 1998 (PDA), until June 2013 there was no “public interest” test in the legislation. Indeed, following the case of Parkins v Sodexho decided in 2002 in which the EAT held that a protected disclosure could relate to a breach of the whistleblower’s own contract of employment, there was an increasing tendency for employees to use the protection of the legislation, not for the benefit of the public, but for their own personal benefit where their employer was in breach of the employee’s own contract of employment. This was particularly so where the employee had not accrued sufficient service to bring an ordinary unfair dismissal claim. This had clearly not been the original intention of the PDA which was the reason for the change in the legislation in 2013 introducing the public ineterst requirement.

So what were the facts of the case in which the EAT considered the meaning of the words “in the public interest”? Mr Nurmohamed was a senior manager at the Mayfair branch of Chestertons, the estate agent. On three occasions between August and October 2013, following changes to the company’s commission structure, he made disclosures to the area director and the HR Director in which he asserted that the company was deliberately supplying inaccurate profit and loss figures, and overstating actual costs and liabilities incurred, which resulted in lower commission payments for around 100 senior managers including himself. He was dismissed and brought claims against Chestertons in the Employment Tribunal. The tribunal found that he had been unfairly dismissed and subjected to detriments on the grounds that he had made protected disclosures. The tribunal concluded that he had a reasonable belief that his disclosures were in the interest of 100 senior managers and this was a sufficient group of the public for the matter to be in the public interest, even though his main motivation was his own income. Chestertons appealed arguing that disclosures made in the interest of 100 senior managers could not be said to be “in the public interest”.

The EAT upheld the tribunal’s decision. Although Mr Nurmohamed was principally concerned with his own position, he did have a reasonable belief that his disclosures were in the interests of the other senior managers and that was a sufficient group for him to reasonably believe that his disclosure was in the public interest. He was not simply using the whistleblowing for his own private purpose.

The correct question to ask is whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest. Even though the worker may in fact be wrong and there is no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was in the public interest was objectively reasonable then the public interest test is satisfied.Employers should also remember that another change made in 2013 was to remove the requirement of good faith so there is no longer a requirement that a worker establishes that they were acting in good faith when making a disclosure in order for that disclosure to be protected.