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WHISTLEBLOWING: THE EAT CONSIDERS THE MEANING OF THE WORDS ‘IN THE PUBLIC INTEREST’

Mark Humphreys

In June 2013 it became a requirement of any qualifying disclosure, for the purposes of a whistleblowing claim, that in the reasonable belief of the worker making it, the disclosure was made in the public interest. This change was introduced by the Government to reverse the effect of the EAT’s decision in Parkins v Sodexho [2002] IRLR 109 which held that a protected disclosure could include a breach of the worker’s own contract of employment. The thinking behind the change was that the statutory whistleblowing provisions existed to protect workers, who at risk to themselves, raised issues of public importance, the paradigm example being junior medical staff alleging failures to follow required clinical practices in hospitals; they were not intended to be another vehicle for pursuing private contractual disputes.

In Chestertons v Nurmohamed, in which judgment was handed down on 8 April 2015, the EAT considered the meaning of the words in the public interest. It is the first appellate authority on the subject.

The Claimant was director of Chesterton’s (a well-know estate agents) Mayfair office and had alleged that the company was deliberately misstating some £2-3m of costs and liabilities, which affected the earnings of 100 senior managers, including the Claimant himself.

The Claimant succeeded before the Tribunal at first instance. The employer appealed on the ground that the Tribunal had been required to determine whether the disclosures were objectively in the public interest; they were not, and the Tribunal had not properly addressed the issue contended the appellant. The EAT dismissed the appeal, and in doing so set out two important principles:

First, the issue for tribunals is not whether a disclosure is in the public interest as such, the issue is whether the worker has a reasonable belief that the disclosure is made in the public interest. This construction of course follows the wording of the statute, s.43B of the Employment Rights Act providing that: "…a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and….”

Second, in considering the issue of reasonable belief, the test and approach for tribunals remains as it did before the introduction of the public interest requirement. It will be remembered that it was and remains a requirement of a qualifying disclosure that in the reasonable belief of the worker making the disclosure it tended to show one or more of the so-called categories of failure set out in s.43B. First a tribunal will look at the issue of the worker’s belief; this is clearly subjective. Then the tribunal must consider if that belief was reasonable, an objective test. A tribunal is this not required, in fact it is no part of the test, to assess whether objectively a disclosure was in the public interest.

It follows from this that the public interest test can be satisfied where the factual basis of the public interest disclosure is wrong, and/or there is no public interest in the disclosure being made, so long as the worker believed that the disclosure was made in the public interest and that belief was objectively reasonable.

The EAT’s judgment will be particularly relevant to whistleblowing cases where the alleged breach is also a breach of the claimant’s own employment contract and/or affects them personally, as here. The requirement is for the worker’s reasonable belief that the disclosure is made in the public interest; this can be met where the claimant is personally affected, there is no requirement that the worker is unaffected by the alleged breach. Interestingly the EAT’s judgment cited comments made in Parliament by the minister sponsoring the new provisions. Those comments included the statement: "…although our aim is to prevent the opportunistic use of breaches of an individual’s contract that are of a personal nature, there are also likely to be instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues. In other words, in a worker’s complaint about a breach of their contract, the breach in itself might have wider public interest implications.”

Posted: 16.04.2015 at 10:29
Tags:  Comments  Employment Law
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