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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
.”

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