The recent Employment Appeal Tribunal (EAT) case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (2015) concerned a Director (Mr Nurmohamed) of the Mayfair office of a firm of estate agents. Mr Nurmohamed made protected disclosures i.e. he ‘blew the whistle’ about manipulations of the company accounts. Mr Nurmohamed believed that financial information was being deliberately misstated so as to reduce the commission payments that he and around 100 senior managers would have otherwise received. Mr Nurmohamed was dismissed and brought claims against his employer in the Employment Tribunal (ET).
Workers who blow the whistle are given the benefit of legal protection. Providing that certain requirements are met, a worker has the right not to be unfairly dismissed or to be subjected to a detriment because they have made a protected disclosure.
Since 25 June 2013, the requirement that a disclosure had to be made in “good faith” no longer applies, although Employment Tribunals have been given the power to reduce any compensation awarded to a claimant by up to 25% if the protected disclosure was not made in good faith.
The changes in June 2013 also involved inserting a “public interest” test into the legislation on qualifying disclosures. This means that, for disclosures made on or after 25 June 2013, the worker must have a reasonable belief that the disclosure they are making is in the public interest.
The public interest requirement was introduced to reverse the effect of the case of Parkins v Sodexho (2001) in which the EAT held that whistleblowing protection can cover someone who blows the whistle about a breach of their own contract of employment, even where the disclosure only concerns them personally and is not in the public interest.
Getting back to the Chesterton case, the ET found that Mr Nurmohamed had made qualifying disclosures and that it was his reasonable belief that the disclosures would be in the interests of the 100 senior managers. The ET held that the 100 senior managers amounted to a sufficient section of ‘the public’ for the disclosure to be in the public interest; it was not necessary for the disclosure to be of interest to the entirety of the public.
Mr Nurmohamed’s employer appealed to the EAT on the grounds that the 100 senior managers were not a sufficient group of ‘the public’ for the disclosures to be in the public interest and that the question of whether the disclosures were in the public interest should be determined by the Tribunal objectively.
The EAT confirmed that a sufficient section of the public would be affected (the 100 senior managers) so as to satisfy the public interest test and held that it didn’t matter whether a disclosure was actually in the public interest, but only whether the worker believed that it was in the public interest and his belief was, objectively, reasonable.
Whilst the EAT ruled that in order to pass the public interest test it is sufficient for a section of the public to be affected, it is not possible to say how many people would need to be affected as this will depend on the facts in each case.
Although the introduction of the public interest test may have put an additional hurdle in the path of workers trying to establish whistleblowing protection, it would appear that the hurdle is relatively low and certainly lower than many people expected when the change in the law was introduced.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).