The EAT has held that a contractual dispute affecting a number of staff in a private company (but not the wider public), will satisfy the public interest test under the amended Public Interest Disclosure Act.
Howes Percival Employment Law expert Nick Benton comments:”This decision is perhaps not surprising in view of the number of employees affected. It remains to be seen how few employees need to be impacted for a disclosure still to be regarded as being in the public interest. In the meantime, employers should be live to this potential risk especially where the perception is that a short serving employee has no unfair dismissal rights!”
Changes to whistleblowing laws introduced by the Enterprise and Regulatory Reform Act in 2013 sought to limit the cases where individual contractual disputes can be relied on to make “protected disclosures”. It did this by imposing a requirement that disclosures must be matters of public interest.The EAT confirmed that the public interest requirement did no more than prevent a worker from relying on a breach of their own contract where the breach is personal in nature. Therefore employers will still need to be aware that employees may have whistleblowing protection where they make a protected disclosure which relates to the wider work force or a particular group of employees.
In Chesterton Global Ltd and another v Nurmohamed, Mr Nurmohamed made a number of allegations that the company was manipulating profit and loss figures and making deliberate misstatements about costs and liabilities. He alleged that this was being done for the benefit of shareholders as it adversely affected the commission due to around 100 senior managers.Mr Nurmohamed was later dismissed and brought claims including an automatic unfair dismissal claim, alleging that his dismissed was as a result of making a protected disclosure.
The tribunal found that the allegation regarding the manipulation of figures did amount to a protected disclosure as it related to a breach of a legal obligation and accepted that at the time of making the disclosure Mr Nurmohamed believed the disclosure was in the interest of the 100 managers affected.The EAT dismissed the employer's appeal holding that there can be a public interest disclosure even where the disclosure turns out to be wrong or it turns out there was no public interest in the disclosure being made – provided that the worker's belief (that it is in the public interest ) at the time of the disclosure is objectively reasonable.
The EAT also accepted that while Mr Nurmohamed was most concerned about his own situation he did have the other managers in mind at the time and that was sufficient for the disclosure to be in the public interest. This was not affected by the fact that the employer was a private rather than a public company. The changes to whistleblowing laws were brought in to remedy the previous position which enabled many employees to rely on individual contractual disputes to pursue a whistleblowing case because they either did not have continuity of service for an ordinary unfair dismissal case or to pursue uncapped compensation.
