‘Public interest' is used by many to justify a wide range of actions and proposals. However, it is often unclear - even to those using the term - what they actually mean by the “public interest”. James Bond and Batman were acting in the public interest. Action heroes aside; one is often left with the inevitable suspicion that the phrase is a smokescreen to vindicate the actions of Mr Self-Interest (comic book sketch to follow).
In terms of employment law, the definition is important, because under whistle-blowing legislation, for an employee to gain protection from detriment or dismissal after making a qualifying disclosure, the disclosure must, in the reasonable belief of the person, be “in the public interest”. The narrowed requirement for a disclosure to be in the “public interest” came in 2013, when the law was changed to counter the effect of the controversial judgment in the case of Parkins v Sodexho, which had the effect of allowing claims based solely upon individual employment disputes. The government recognised that adding in the “public interest” requirement, would limit the scope of protection and ensure that workers like Mr Self-Interest were not receiving unnecessary protection.
In the Employment Appeal Tribunal (‘EAT’) case of Chesterton Global Ltd v Nurmohamed, the EAT found that complaints around commission payments affecting 100 senior managers were deemed to satisfy the “public interest” test. That provided some helpful guidance suggesting that matters affecting circa 100 people would likely qualify for protection. This case is being appealed to the Court of Appeal and is listed to be heard in October 2016.
In the case of Underwood v Wincanton Plc, one of the Claimant's claims was that he had made a protected disclosure and had been subjected to a detriment by his employer. The disclosure was a written complaint made by him and three other lorry drivers that overtime was not being distributed fairly, which they alleged was in breach of their employment contract. The Employment Tribunal struck out the claim, finding that a complaint concerning only a small group of workers about terms of their contracts, could not meet the new "public interest" threshold.
However, overturning the decision on appeal, the EAT recognised that the Tribunal's judgment had been given before any real judicial guidance as to the meaning of "public interest" and before its decision in Chesterton (see above). So just four employees complaining about terms of their own contract was capable of meeting the “public interest” test.
This area of the law is subject to an appeal and will be the subject of some judicial debate for some time. It is hoped that in the fullness of time we will have clearer guidance from the courts or government as to the precise nature of a disclosure which meets the “public interest” threshold.
What does this mean for you or your business?
Unless you are in the business of uncovering the existence of a sinister organisation known as SPECTRE, or fighting crime in Gotham City, then our advice is to tread carefully before discounting a potential whistle-blowing complaint on the basis that it has failed to meet the public interest test.
What do you need to be doing now?
Treat all whistle-blowing complaints seriously and do not discount them just because the alleged disclosure affects just a small number of workers. And stay tuned for further updates in this area.
Now please excuse me, I am off to dress up in my Superman costume and ask for a pay rise - it’s in the public interest of course…
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.