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28 April 2015

Whistleblowing: EAT says “reasonable belief in public interest” is low threshold.

In order to be protected against detrimental treatment or dismissal by the UK whistleblowing legislation, a worker must have made a "protected disclosure". This is a disclosure which shows that one or more of six specified types of wrongdoing (such as a failure to comply with a legal obligation, a criminal offence or a miscarriage of justice) has taken place, is taking place, or is likely to take place.

Some important changes were made to UK whistleblowing law in 2013.  A whistleblower must believe that making the disclosure is in the public interest, and must be able to show that that belief is reasonable.  The intention behind this change was to prevent individuals from claiming whistleblowing protection in the context of alleged breaches of their own contracts of employment where there were no wider public interest implications.

The practical impact of this change has been unclear, as what is “in the public interest” is often a subjective question.  In a case reported this month, the EAT demonstrated a flexible approach to the question of public interest.

Facts

Mr Nurmohamed was Director at an office of the estate agency, Chestertons.  He alleged to two senior managers that the Company was overstating costs for its London office to reduce the bonus and commission payments to its managers, himself included.

The question for the Tribunal was whether Mr Nurmohamed’s tribunal claim arose from a personal grievance over pay (the sort of claim that the 2013 changes sought to exclude from whistleblowing protection), or whether Mr Nurmohamed reasonably believed there was a wider public interest involved.

Decision

The employment tribunal found that the disclosure was made with a reasonable belief that it was “in the public interest” and the Employment Appeal Tribunal upheld that decision.

The Tribunal found that the fact that a substantial number of other managers were affected by Mr Nurmohamed’s allegations of employer impropriety was significant.  It was satisfied that the legislation cannot have been intended to mean something which is of interest to the entirety of the public, since it is inevitable that only a section of the public would be affected by the kinds of disclosures that arise from time to time.  The Tribunal found that a disclosure relating to a relatively small group of people may satisfy the public interest test, although what is sufficient is necessarily fact sensitive.

The EAT rejected the employer’s arguments that the case was a private and personal dispute.  It made it clear that the fundamental question a tribunal must consider for the purposes of the revised legislation is not whether a disclosure is in the public interest, but rather whether the individual making the disclosure has a reasonable belief that it is made in the public interest (even if that belief is incorrect).

Comment

This case provides important initial insight into a potentially flexible approach on the part of courts when interpreting the 2013 changes to whistleblowing protection.

Employers should be wary however about relying too much on numbers in this context; the significance is not so much the number of employees (100 in this case), but whether Mr Nurmohamed was entirely self-interested or could demonstrate some wider purpose.  Employers need to be aware of these issues when drafting whistleblowing policies and dealing with exchanges with their workers that could be eligible for whistleblowing protection.

http://www.bailii.org/uk/cases/UKEAT/2015/0335_14_0804.html