The EAT has given its first decision on the meaning of “in the public interest” in a whistleblowing context. It held that an employee’s disclosures about his employer’s manipulation of its accounts, which resulted in the underpayment of his commission, were made in the reasonable belief that they were “in the public interest”. A key factor was that the issue affected 100 other senior managers, as well as the Claimant. This generous interpretation of “public interest” means it is unlikely to prove a significant hurdle for workers to overcome.
Disclosures about the Claimant’s commission were “in the public interest”
Since June 2013, in order to make a qualifying disclosure, a worker must disclose information which in his reasonable belief is “in the public interest”. This change was intended to close the loophole which enabled a worker to rely on a disclosure about a breach of his own employment contract, even where there was no wider public interest. In Chesterton Global Ltd v Nurmohamed, the Claimant made various disclosures to his employer, alleging it was manipulating its accounts, resulting in lower commission payments to him and 100 other senior managers. The Tribunal found that the disclosures were made in the reasonable belief that the matter was in the interest of the other senior managers, and this was a sufficiently large section of the public to satisfy the public interest test.
Dismissing the employer’s appeal, the EAT held that the issue was not whether the disclosures were actually in the public interest, but whether the Claimant had a reasonable belief that they were. It is therefore irrelevant that there is in fact no public interest in the disclosure, or it transpires that the disclosure was false. The EAT also emphasised that the sole reason for introducing the public interest test was to prevent a worker relying on breaches of his own contract that were of a “personal nature”. In Nurmohamed, even though the Claimant was primarily concerned about himself, he also had the other managers in mind. Accordingly, the Tribunal was entitled to find that the public interest requirement was satisfied.
Although the disclosures made by the Claimant in this case were in the context of a ‘private’ dispute with his employer, the test was satisfied because the other affected employees were a sufficiently large section of ‘the public’. This decision suggests that establishing a public interest is a relatively low hurdle for workers. However, it will be interesting to see how cases are decided where fewer individuals are affected.