First EAT decision in respect of the new whistleblowing provisions in the Employment Rights Act 1996

We recently highlighted the new whistleblowing guidance and Code of Practice published by the Department of Business, Innovation and Skills (BIS), which is intended to give employers  additional support and advice, to help them understand and apply the law on whistleblowing (to access the article, click here).

Suzanne Nulty now discusses the impact of the EAT’s recent judgment in Chesterton Global Ltd and anor –v- Nurmohamedwhich considered the ‘public interest’ test.

Chesterton Global Ltd and anor –v- Nurmohamed

The decision in Chesterton Global Ltd and anor –v- Nurmohamed is the first time that the EAT has considered the ‘public interest’ test, since it was inserted into the whistleblowing provisions of the Employment Rights Act (ERA) 1996 in June 2013.

Mr Nurmohamed was employed as director of the Mayfair office of CG Ltd, a firm of estate agents. On three occasions he raised concerns about inaccuracies in the company’s statements of profit and loss and manipulation of corporate figures. He was concerned that this affected the earnings of more than 100 senior managers. Following dismissal Mr Nurmohamed brought a claim alleging, among other things, that he had suffered detriments and had been automatically unfairly dismissed for having made protected disclosures.

At the Employment Tribunal, his claim was upheld on the basis that his allegations amounted to protected disclosures relating to breach of legal obligations, within Section 43B ERA 1996. In drawing its conclusion, the Tribunal concluded that Mr Nurmohamed reasonably believed that the disclosure was ‘in the public interest’ (this was a requirement as of 25 June 2013, under the amendment to S.43B(1) ERA) on the basis that:

  1. At the time the disclosures were made, Mr Nurmohamed believed that disclosure was in the interest of the 100 senior managers.
  2. The 100 senior managers is a sufficient group of the public to amount to being a matter in the public interest.
  3. Mr Nurmohamed’s belief was reasonable.

On appeal the EAT upheld the Tribunal’s decision; the Tribunal had correctly approached the ‘public interest’ test. The EAT determined that the test under section 43B(1) of the 1996 Act is not whether the disclosure is in the public interest, rather it is whether the worker making the disclosure had a reasonable belief that it was. The EAT noted that the language of ‘reasonable belief’ pre-dated the June 2013 amendment and was unchanged by it. Therefore the principles in Babula –v- Waltham Forest College (2007) are still relevant and the public interest test can still be satisfied even where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker’s belief is objectively reasonable.

The EAT also stated that the purpose of the 2013 amendment was to do no more than prevent a worker from relying on a breach of his own contract of employment where the breach is of a personal nature (as was previously the case pursuant to the 2002 decision in Parkins –v- Sodexho Ltd). Thus the EAT drew a distinction between disclosures of a personal nature and disclosures with wider public interest implications. In this case, the EAT recognised that Mr Nurmohamed was most concerned about himself but was satisfied that he did have the interests of the other 100 office managers also in mind. On that basis it was permissible to conclude that a section of the public was affected.

It is also important to note that the EAT’s conclusion was not undermined by the fact that CG Ltd is a private rather than a public company.

Comment

This case is useful guidance to employers as to when a worker’s disclosure will satisfy the ‘public interest’ test.

Employers should note that the worker must only demonstrate an (objectively) reasonable belief in both the disclosure being in the public interest as well as to the truth or accuracy of the disclosure. Therefore even if the worker was wrong about the facts and the tribunal disagrees that the disclosure was in the public interest, the worker may still be protected if their beliefs in these matters were objectively reasonable.