As we have covered in previous articles, employees who do not have sufficient length of service to claim unfair dismissal sometimes try to bring a whistleblowing claim, as there is no minimum length of service required, and no cap on the amount of compensation that can be awarded by the Employment Tribunal if the claim is successful.
Most of us would probably associate whistleblowing with employees raising concerns around, for example, the care of vulnerable people in the social care sector. However, one issue which has arisen in recent years is whether an employee who makes a complaint of a personal nature about a breach of their own contract of employment can claim protection as a whistleblower.
Back in 2015, we reported on the case of Chesterton Global Ltd v Nurmohamed when it was heard by the Employment Appeal Tribunal (see our previous article here). Now the Court of Appeal has given its judgment in this key whistleblowing case.
By way of a quick recap – Mr Nurmohamed was a Director at an estate agents. He made protected disclosures (i.e. ‘blew the whistle’) about manipulations of the company accounts affecting the commission paid to him and to around 100 senior managers. Mr Nurmohamed was dismissed and claimed this was because he had ‘blown the whistle’. The issue in this case was whether Mr Nurmohamed’s disclosures met the public interest test required for whistleblower protection to apply – did he have a reasonable belief that the disclosures were in the public interest?
The Employment Tribunal, and the Employment Appeal Tribunal, concluded that 100 senior managers amounted to a sufficient section of the public for the disclosures to be in the public interest. Mr Nurmohamed’s employer appealed to the Court of Appeal, arguing that for the disclosure to be in the public interest it should have to affect people outside the workplace. The case was heard in June, and the judgment has recently been released.
The Court of Appeal confirmed that the test is: (a) whether the worker believed at the time that the disclosure was in the public interest, and (b) if so, was that belief reasonable – recognising that there might be more than one reasonable view.
The Court said that where a disclosure relates to a breach of the worker’s own contract of employment, “there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker” and that the following factors may be a useful tool for Tribunals in determining whether a disclosure is in the public interest:
The number of affected employees – although this is not definitive.
The nature of the interests affected – does the disclosure concern a trivial wrongdoing, or a wrongdoing directly affecting a very important interest?
The nature of the alleged wrongdoing – was the wrongdoing deliberate or inadvertent?
The identity of the alleged wrongdoer – the more prominent the wrongdoer, the more a disclosure about its activities should engage the public interest.
So, the implications of this decision are that an employee who blows the whistle about a breach of their own employment contract can potentially succeed in a whistleblowing claim, although it would depend on the particular facts of the case. We recommend having a whistleblowing policy in place – we can help with this, or if you have a whistleblowing policy that may need updating, we can help with that too! It is important to make sure that staff are aware of the policy, and that managers are trained on it.
We can help with creating or updating a whistleblowing policy, as well as advising on any particular situation. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.