In 2013, some important changes were made to UK whistleblowing law (through small but no less significant changes to the provisions of the Employment Rights Act 1996). A principal change was that legal protection is now afforded only to those raising whistle-blowing allegations which they reasonably believe involve an issue of public interest. This change was introduced following the case of Parkins v Sodexho Limited, 2002, with the intention of preventing individuals from claiming whistleblowing protection in the context of alleged breaches of their own contracts of employment and in the absence of any wider public interest implications. In practice, claimants were using the whistleblowing jurisdiction to circumvent the qualifying period in order to bring a claim of unfair dismissal.
Whilst a change was welcomed by employers on the basis it would filter out individual grievances from disclosures relating to broader, corporate concerns, the practical impact of this particular 2013 change has been unclear. What is “in the public interest” is often a subjective question but the statutory test does not end there, since its focus is the reasonableness of the individual in believing their disclosure to be in the public interest. Such issue left employers wondering how stringent the courts might be in applying this test.
This issue was considered in a case reported by the EAT this week. Although specific on its facts, the court demonstrated a flexible approach to the question of public interest and the mindset of the whistleblower in this case.
Mr Nurmohamed was Director at an office of the estate agency, Chestertons. He raised allegations with two of his senior managers that he believed the company had deliberately manipulated office accounts to reduce bonus and commission payments to its managers, including himself. Some 100 or so managers were likely to be affected. He was later dismissed and brought claims of unfair dismissal and detriment arising from his allegedly protected disclosures.
But did his tribunal complaints stem, in reality, from a personal grievance over pay -of the kind the 2013 changes sought to exclude from whistleblowing protection - or did Mr Nurmohamed reasonably believe there to be a wider public interest involved?
The employment tribunal found the fact that a substantial number of other managers were affected by Mr Nurmohamed’s allegations of employer-impropriety to be significant. As regards the question of “public interest”, it was satisfied that the legislation cannot have been intended to mean something which is of interest to the entirety of the public since it is inevitable from the kind of disclosures which arise from time to time, such as disclosures about hospital negligence or disclosures about drug companies, that only a section of the public would be directly affected. With this in mind, where a section of the public only would be affected, rather than simply the individual concerned, the tribunal found this must be sufficient for a matter to be in the public interest.
In the view of the tribunal, the 100 or so senior managers represented a sufficient group of the public to support a public interest. Furthermore, Mr Nurmohamed was found to have had this extended group in mind when raising his allegations, not merely his own interests. Accordingly, the tribunal upheld Mr Nurmohamed’s claims.
His employer appealed, challenging the tribunal’s conclusion that disclosures made in the interest of the 100 senior managers were sufficient to introduce a public interest and an apparent failure by the tribunal to determine objectively whether the disclosures were of real public interest.
The EAT rejected both contentions. Significantly, it made clear that the fundamental question a tribunal must consider for the purposes of the revised legislation (ie section 43B(1) ERA) is not whether a disclosure is in the public interest ,but rather whether the individual making the disclosure has a reasonable belief that the disclosure is made in the public interest. Here, it found Mr Nurmohamed’s belief to be reasonable on established principles ie the public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable (Babula v Waltham Forest College, 2007).
This is the first appellate court case on the meaning of “public interest” in the context of whistleblowing and provides important initial insight into a potentially flexible approach on the part of courts when interpreting the 2013 revisions to whistleblowing protection.
Whilst, on the facts of this case, a group of 100 employees was found to suffice to imply a public interest, employers should be wary of relying on numbers alone in this context. The more important issue appears to be whether Mr Nurmohamed was entirely self-interested or could demonstrate some wider purpose. Here he was found to do so but where that distinction might be drawn in other circumstances is not clear. Going forwards, employers should review carefully the potential impact of an alleged disclosure.
Importantly also, even the employer’s representative did not suggest that a qualifying disclosure related to private contractual obligations between an employer and an employee can never be in the public interest. He cited the example of a complaint about an employer operating a racially discriminatory policy. Such an issue, he contended may well be in the public interest because public policy is directed against discrimination in society at large on grounds of race.