The problem with the Public Interest Disclosure Act was that until amended in 2013, the only place within it where the words “public interest” appeared was in the title. That meant that so long as you could find something you reasonably believed to be the breach of a legal obligation and then complained about it, you gained all the protections of a whistleblower even if the breach had nothing to do with anyone’s interests but your own.
In 2013 the wording of the PIDA bits of the Employment Rights Act 1996 was amended to prevent employees complaining about matters of pure self-interest arising from alleged breaches of their contracts of employment as a means of gaining the protections against detriment and dismissal which are afforded to whistleblowers. From then on, the employee has been required to show that he reasonably believes that his complaint or disclosure is made “in the public interest”. But what is the public interest? Who is the “public” for this purpose? The Employment Appeal Tribunal has just looked at this in Nurmohamed –v- Chestertons.
Mr Nurmohamed worked for the Mayfair office of Chestertons as a director. He took the view (for reasons which do not matter) that Chestertons was manipulating office profit figures so that shareholder dividends went up and senior management level bonuses (not just Mr Nurmohamed’s, but also those of around 100 colleagues) headed south. He complained and was sacked in short order thereafter. To pursue his whistleblowing claim Mr Nurmohamed had to show that his complaints amounted to a protected disclosure, i.e. that he reasonably believed them to be in the public interest and not just about him.
Bar some potentially apocalyptic nuclear safety failure, almost no breaches of legal obligations will affect absolutely everyone. “Public interest” must therefore include smaller populations, but how small? In Nurmohamed the EAT agreed with the Employment Tribunal, i.e. that the 100 other managers were enough to constitute “public”, especially together with prospective buyers of the Chestertons business who were allegedly being misled about its true profitability through the inflation of the dividends.
What the EAT unfortunately did not do is express any view about how small a group could ultimately be relied upon as the “public”. Is it just a numerical question or (perhaps more likely) does it include consideration of the level of harm which the breach of legal obligation has caused or could cause (i.e. the more serious the harm, the smaller the affected population need be)?
There seems little difference in principle between 100 people and 50 or 25 or 10 other people affected, maybe even fewer. So the well-advised employee will generally seek some angle within his disclosure which he can say touches on other people too – no longer that he is unlawfully over-worked or over-heated or bullied in the workplace, but that these are all issues affecting his colleagues too. The burden of proving reasonable belief is not a high one and the fact that none of his colleagues have complained does not mean that they are not the unwitting victims of breaches of a legal obligation.
The Employment Tribunal will then need to consider whether his concern about his colleagues is genuine or whether it is merely a stunt to side-step the public interest requirement in order to obtain whistleblowing protection for what is actually just a gripe about his own personal position. Mr Nurmohamed stressed all the way through his correspondence with Chestertons that he was concerned more broadly than just about his own bonus. That was accepted as genuine by the Tribunal, and so his claim has been allowed to proceed.