Workers who raise concerns about their employer failing to comply with a legal obligation and who reasonably believe that the disclosure is made in the public interest are protected from being subjected to a detriment because of making the disclosure. The public interest test for a qualifying disclosure was only introduced into the legislation in 2013. It was designed to disapply the protection for whistleblowers where their complaint is essentially just about a breach of their own employment contract.
In Chesterton Global Ltd v Nurmohamed, the Court of Appeal has considered the circumstances in which it will be reasonable for a worker to believe that a disclosure is made in the public interest.
Mr Nurmohamed was a senior manager of a branch of Chestertons. He raised concerns to two directors that the company was passing deliberately inaccurate figures to its accountants in order to lower the amount of profit-based commission payable to around 100 senior managers. Mr Nurmohamed was subsequently dismissed. This indeed, at first glance, looks like a simple complaint about a breach of an employment contract.
But he brought claims in an employment tribunal, including automatic unfair dismissal, on the basis that he had been dismissed for making a protected disclosure. An employment tribunal upheld his claim, stating that the disclosure affected a fairly large number of employees and so could reasonably be believed to have been in the public interest.
The EAT agreed, pointing out that the question is not whether the disclosure was in the public interest but whether the worker subjectively believed that it was and whether that belief was objectively reasonable.
The Court of Appeal agreed with the lower courts. It made clear that there may be a range of reasonable views about whether a disclosure is in the public interest and that a tribunal should not substitute its own view. It commented that the actual reasons for the worker believing the disclosure to be in the public interest should not be the focus of analysis. The tribunal may find a belief to be objectively reasonable based on factors which were not in the mind of the worker. The Court of Appeal also stated that a worker need not be motivated by the public interest to make the disclosure. As long as the worker reasonably believes that making the disclosure is in the public interest, the worker can be motivated entirely by self-interest.
The Court of Appeal refused to broaden the definition of public interest to cover any disclosure where the interests of someone apart from the discloser are affected (as suggested by Public Concern at Work, which had intervened in the case). However, Lord Justice Underhill expressed his expectation that tribunals will have a cautious approach to cases where a breach of the employment contract affects only those within an organisation. In this he was mindful of parliament's intention in amending the legislation to include the public interest test: "that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistle-blowers".
The judgment cites with approval a number of factors which may assist tribunals in deciding whether a worker's belief that a disclosure is in the public interest was reasonable: the size of the group of people affected by the alleged wrongdoing; the importance of the interest affected; whether the wrongdoing is deliberate or accidental; and the size or prominence of the organisation alleged to have done wrong.
Employers need to be aware of the rules protecting employees who make protected disclosures. A claim based on detriment, including dismissal, for making a protected disclosure does not require a qualifying period of employment before the claim can be brought.