02 June 2015

Employees must show 'public interest' or they are not protected under whistleblowing law

Employers faced with a worker alleging they have made a 'protected disclosure' under whistleblowing law should consider whether the disclosure is in the public interest.

Workers are protected against detriment or dismissal under UK whistleblowing laws if they make a 'protected disclosure'. This protection only applies if the worker reasonably believes the disclosure was in the public interest.

Historically, a disclosure relating to the worker's own terms of employment have not been treated as in the public interest. However, in a recent case a director of a major estate agents told his HR Director that he believed the company had deliberately misstated between £2m and £3m of costs and liabilities in its accounts. The consequence was that the director, and around 100 other senior employees, received lower bonuses and the company's profits were not as depleted as they would otherwise have been.

The Employment Appeal Tribunal (EAT) said the 'public interest' requirement was to stop a worker from using whistleblowing law where the detriment is of a personal nature, with no wider public interest implications. It found that the director reasonably believed his disclosure was not only in his interests, but also the interests of his senior colleagues, and this was a sufficiently large group for his disclosure to be treated as in the public interest. It was irrelevant that his primary motive for the disclosure was his own bonus, because he also had his colleagues in mind when he made his disclosure. He had therefore made a protected disclosure.

The EAT also made the following points:

  • The public interest test can be satisfied, depending on the facts, even if a relatively small number of individuals are affected by the subject matter.
  • The test is whether, objectively, the worker reasonably believed the disclosure is in the public interest, even if the worker's belief is wrong.
  • It was irrelevant that the company was private, and not public.

Operative date

Now

Recommendation

Employers faced with a worker alleging they have made a 'protected disclosure' should consider whether the disclosure is in the public interest.  If it isn't, the worker is not protected from detriment or dismissal under whistleblowing law.

Case ref:

Chesterton Global Limited and anor v Nurmohamed UKEAT/0335/14/DM

If you have any queries regarding this topic, or want to know how this could affect your business, please contact Ian Dawson on 0113 297 7735 or at idawson@shulmans.co.uk.