Public Interest Test for Whistleblower Protection

The Problem

A handful of your employees allege that the Company was manipulating profit and loss figures which, in turn, impacted upon their commission payments. In raising the concern the question arose as to whether this concern passed the ‘public interest’ test for whistleblower protection, even though the employee’s motivation in raising the allegation was for their own gain.

The Principle

This was the issue which the EAT had to consider in Chesterton Global Ltd and anor v Nurmohamed. The EAT upheld the tribunal’s decision that Mr Nurmohamed's allegation that the effect of the manipulation on his and other managers’ commission payments did pass the public interest case. About 100 other employees were affected by this matter.

The EAT dismissed Chesterton's appeal. The EAT pointed out that the test is not whether the disclosure per se was in the public interest but whether the worker making the disclosure had a reasonable belief that it was. The EAT noted that the words ‘in the public interest’ were introduced into the legislation do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. In the present case the tribunal was satisfied that Mr Nurmohamed did have the other office managers in mind and so concluded that a section of the public was affected.

The Practice

This case is the first appeal decision we have around the issue of the ‘public interest’ test inserted into the whistleblowing provisions of the Employment Rights Act 1996 in June 2013. It is striking that an employee raising concerns about his own contract could well be covered by the whistleblowing legislation if such concerns have an impact on his/her colleagues. We therefore advise employers facing such concerns (perhaps through receiving a grievance) to be alert to how far reaching the disclosure may be on other employees when dealing with such issues.

For further information, help or advice please contact Tim Davies on 0191 211 792 or [email protected]