In 2013 the Government inserted a provision that indicated a person would only be able to qualify for protection for bringing a whistleblowing claim if it was brought in the public interest.
Here we look at a case which established that there doesn’t actually have to be a public interest point, just a reasonable belief that there was one…
Protection for whistleblowers was first introduced by the Public Interest Disclosure Act. The aim - to ensure those that raised concerns of public interest were protected from dismissal or detriment at the hands of their employer. However, the only reference to "public interest" was in the title. The result - individuals were able to bring claims arising out of personal circumstances affecting them, despite there being no public interest element. For example, by alleging failure to prevent harassment and bullying, an employee could benefit from the protection of the act by showing that the employer had thereby failed to protect their health and safety, one of the qualifying disclosures covered by the act. The ambit of the act therefore expanded to deal not just with cases brought in the public interest but also those as a result of a private, contractual dispute.
The effect was that an employer, who unsuccessfully defended such a claim, faced claims upon which there was no limit on the amount of compensation that could be awarded. As no qualifying service is required to bring a claim under the act, those with insufficient service to bring an unfair dismissal claim, would try to mount a claim on the back of this legislation instead.
The Government attempted to close the loophole in 2013 by inserting a new requirement that the concern raised had to be in the public interest. We have now had the first reported case on what amounts to public interest.
In the case of Chesterton Global Ltd and anor v Nurmohamed the employee worked for an estate agency. He raised a concern on three occasions that the company had overstated its costs for its London office, manipulated its profit and loss accounts and in doing so had reduced the bonuses/ commissions due to him and approximately 100 other employees. He was dismissed as a result. The employer was a company in the private sector. It was clear the employee had raised the concern primarily due to his own interests ie to maximise the monies due to him under his contract. The commission issue was of no relevance to anyone other than the 100 or so managers affected. The question was whether in raising the concerns, he had raised them in the reasonable belief that it was in the public interest to do so and thus gain the protection of the act.
The Tribunal concluded that he had raised them in the reasonable belief he was acting in the public interest. The EAT agreed. They indicated that the employee only had to demonstrate that they had a reasonable belief that it was in the public interest, not that it actually was in the public’s interest. They also concluded that in the majority of cases any concern raised would only affect a proportion of the public, not all members of the public at large. Despite the relatively small number of people affected, they were considered a sufficient section of the public for him to have been concerned about and thus he was allowed the protection of the act. The fact they were all employed by a private entity made no difference.
The above case illustrates that whilst concerns of a purely personal nature that affect no one else are unlikely to be covered by the act, where the actions complained of are of wider public importance, the individual is likely to receive the Act’s protection. Just how substantial a proportion of the public have to be affected is unclear. The EAT commented that a relatively small group could suffice, depending on the facts. The threshold that the employee has to demonstrate to be able to get home on such a claim is therefore lower than at first thought. Employers beware.
If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton
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