Whistleblowing – What is the Public Interest Test?

For over 15 years, workers have been granted protection from Employment Tribunals when they report dangerous activities or wrongdoing in their company or organisation. The move to protect workers who made such disclosures arose after it was discovered that tragic incidents such as the Piper Alpha disaster could have been avoided had workers been brave enough to speak up without fear of losing their jobs.

Fast forward to June 2013. Amidst allegations that protection for whistle-blowers had gone too far, amendments were made to ensure that a whistle-blower had to believe that their “qualifying disclosure” was in the “public interest” in order to gain legal protection against being subjected to a detriment or being dismissed as a result of their disclosure. But what exactly counts as being in the public interest? That question was answered recently when the first Employment Appeal Tribunal judgment on this point was published.

In Chesterton Global Ltd v Nurmohamed, Mr Nurmohamed was dismissed for disclosing information about alleged manipulation of company accounts which, in turn, were used to calculate commission for over 100 managers. As the whistleblowing disclosure affected the business and its shareholders, rather than the general public, the employer argued that the disclosure should not count as a “protected disclosure” and, therefore, the claim for unfair dismissal should fail. The judges in both the Employment Tribunal and Employment Appeal Tribunal sided with Mr Nurmohamed, finding that his belief that his disclosure was in the public interest was objectively reasonable as, in addition to himself, he did have the other managers in mind. This meant that a section of the public would be affected by the manipulation of the accounts, and the public interest test was, therefore, satisfied.

How does this affect your business?

After the above change in law in 2013, the general view was that if a whistle-blower’s disclosure related to something which personally affected them, rather than the wider public, it was unlikely to meet the legal test and, therefore, qualify for protection. However, this recent case has changed what should be considered whistleblowing, and employers should analyse every disclosure carefully.

What should you do next?

Employers should ensure that any nominated whistleblowing officer of the company is aware of the above case and the effect it has on disclosures. Many businesses may need to update their whistleblowing guidance to officers to ensure that such a disclosure is not overlooked. Employers should also ensure that grievances once not caught by whistleblowing legislation are now identified and dealt with appropriately.

How can you find out more?

If you would like any further information on the issues raised above, please contact Sarah Lee on 01242 248261 or email sarah.lee@bpe.co.uk.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.